2007 Ohio 6138 | Ohio Ct. App. | 2007
{¶ 2} Frances contends that the trial court abused its discretion by failing to impute rental income for the purpose of modifying spousal support. Frances also contends that the trial court erred in failing to consider income that Stanley receives by sharing expense with his new spouse and by failing to consider income that Stanley deducted from his business revenue for the benefit of his new spouse.
{¶ 3} Stanley contends that the trial court erred in making the spousal support reduction effective on March 6, 2006, rather than in May, 2005, when his motion to reduce support was filed.
{¶ 4} We conclude that the trial court erred in failing to consider, as a threshold matter, whether the changes in the parties' circumstances were substantial and were not contemplated at the time of the prior order. Although the parties reserved jurisdiction in the decree to modify spousal support, R.C.
{¶ 5} Accordingly, the judgment of the trial court is Reversed, and this cause is Remanded for further proceedings.
{¶ 7} "1. SPOUSAL SUPPORT. The Husband agrees to pay to the Wife, as and for spousal support, the sum of $18,000.00 per year, payable in monthly installments of $1,500.00 per month, beginning with August 1, 2000, to be discharged in equal amounts according to the pay schedule of the Obligor Husband. * * *
{¶ 8} "Said spousal support shall be sooner terminated upon the Husband's death, the Wife's death or the Wife's remarriage and shall be subject to the ongoing and continuing jurisdiction of this Court.
{¶ 9} "* * *
{¶ 10} "The parties shall, by April 30th of each calendar year, exchange their respective personal income tax returns.
{¶ 11} "Either party shall have the right to apply to this Court for the purposes of modifying the spousal support, due to a change in the financial circumstances of either party.
{¶ 12} "It is the parties' intent that, for the purposes of spousal support, the parties' combined incomes be equalized between the two of them. The parties, in reaching an agreement as to the annual spousal support payment of $18,000.00 per year by Husband to the Wife, have used $60,900.00 of income for the Husband and $25,131 of income for the Wife."
{¶ 13} In May, 2005, Stanley filed a motion to reduce support, claiming that his income had decreased from $60,900 to $17,675. The affidavit of financial disclosure filed with the motion listed his income from Carillon Realty Company as $17,675. Stanley added $15,309 in Social Security and pension income, and $111 of interest income for a total income of $33,095. He then deducted the $18,000 in alimony to arrive *4 at the figure listed in his motion (about $17,000).
{¶ 14} Hearings on the motion were held on three different days before a magistrate. The magistrate filed a decision in March, 2006, rejecting the motion for a reduction, based on the evidence and the credibility of the witnesses. The magistrate imputed income to Stanley in the amount of $14,700 per year based on Stanley's decision to voluntarily decrease his gross income by selling a rental property. Based on Stanley's gross income of $84,405 and Francis's gross income of $40,239, the magistrate found that Stanley had failed to show a change in circumstances sufficient to reduce spousal support.
{¶ 15} Stanley filed timely objections from the magistrate's decision. Without taking further evidence or conducting a hearing in which it could assess the credibility of the witnesses, the trial court found Stanley's income to be $61,876. The court concluded that there was insufficient evidence to support a finding that Stanley had sold the rental property in an effort to deprive Francis of spousal support. The court also used a net rental income figure for the properties Stanley retained and did not allow depreciation taken on the properties to be added back into Stanley's income. The court did not make any findings with regard to whether a substantial change in circumstances had occurred.
{¶ 17} "THE TRIAL COURT ABUSED ITS DISCRETION BY NOT CONSIDERING THE BENEFITS THAT APPELLEE RECEIVES FROM SHARING LIVING EXPENSES WITH HIS NEW SPOUSE IN DETERMINING APPELLEE'S INCOME FOR THE PURPOSE OF MODIFYING SPOUSAL SUPPORT." {¶ 18} Frances's Third Assignment of Error is as follows:
{¶ 19} "THE TRIAL COURT ABUSED ITS DISCRETION BY NOT CONSIDERING THAT APPELLEE CONTRIBUTES TO THE FINANCIAL WELFARE OF HIS NEW SPOUSE AND BY DEDUCTING EXPENSES FROM HIS OWN REVENUE THAT RIGHTFULLY SHOULD BE BORN [SIC] BY HIS NEW SPOUSE IN DETERMINING APPELLEE'S INCOME FOR THE PURPOSE OF MODIFYING SPOUSAL SUPPORT."
{¶ 20} Under these assignments of error, Frances contends that the trial court should have considered the income of Stanley's spouse, Carol, in modifying spousal support, given that Stanley benefitted from sharing living expenses with a new spouse. Frances further contends that income that Stanley could have received as the 100% owner of Carillon Realty, was improperly reduced by the expenses of maintaining a branch office and promoting Carol's career. In response, Stanley claims that the divorce decree limits the court to merely equalizing the parties' incomes and does not allow for consideration of the factors in R.C.
{¶ 21} We review spousal support decisions for abuse of discretion, which means that the trial court's decision must have been arbitrary, unconscionable, or unreasonable in order to merit reversal. Norbut v.Norbut, Greene App. No. 06-CA-112,
{¶ 22} Under R.C.
{¶ 23} The divorce decree in the case before us reserves jurisdiction to modify, leaving only the issue of whether a substantial change of circumstances has occurred that was not contemplated by the parties. The trial court's magistrate rejected the motion for modification, finding that Stanley had failed to prove a substantial change of circumstances. In particular, the magistrate arrived at an income figure of $84,405 for Stanley and $40,239 for Frances. Stanley's income included $14,700 that was imputed. In this regard, the magistrate was troubled by the fact that Stanley had sold an income-generating property and had voluntarily decreased his gross income while using the *7 proceeds to pay off about $80,000 in debt for a property purchased with his new wife. As a result, the magistrate imputed an additional $14,700 in income to Stanley annually. The magistrate did not find it inequitable to refuse to impute further income to Stanley based on the fact that Stanley's new wife had failed to remit commissions to Stanley's realty company, which paid for the expenses of a branch office.
{¶ 24} In ruling on Stanley's objections, the trial court did not consider whether a substantial change of circumstances had occurred, but instead relied on the content of the divorce decree. The court commented that the decree was silent as to how the parties had arrived at the original income figures used to compute support and with regard to whether the parties intended the equalization of income to be ongoing. However, the decree had ordered the parties to exchange annual income information. Because the decree retained jurisdiction to modify spousal support, the trial court concluded that in the absence of language to the contrary, the parties intended equalization to be ongoing. While the trial court did not specifically state that this nullified the obligation to find a substantial change of circumstances, the court also did not discuss the point. Furthermore, based on its conclusion about "equalization," the trial court did not address the factors in R.C.
{¶ 25} The trial court also concluded that there was insufficient evidence to support a finding that Stanley had sold the rental property to deprive his ex-wife of support. Therefore, after failing to impute income to Stanley and deducting business expenses for Stanley's rental properties, the court found $40,239 in income for Frances and $61,876 in income for Stanley. The court then decreased spousal support in the *8 amount of $500 per month.
{¶ 26} In view of the standards we have historically applied, the issue becomes whether the trial court erred in failing to address the issue of a substantial change in circumstances. In Kingsolver v.Kingsolver, Summit App. No. 21773,
{¶ 27} In reaching these conclusions, the Ninth District relied on 1986 amendments to R.C.
{¶ 28} The Ninth District concluded that Ohio courts supplemented R.C. *9
{¶ 29} "[T]he Tenth District Appellate court in Leighner defined a `change of circumstances' as something `substantial' and `not contemplated [by the parties] at the time of the prior order.' * * * After the court's decision in Leighner, however, the legislature once again amended R.C.
{¶ 30} The added language referred to by the Ninth District is contained in R.C.
{¶ 31} "For purposes of divisions (D) and (E) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses."
{¶ 32} The Ninth District concluded that the word "any" was unambiguous, and that the Ohio legislature did not intend the term to mean "substantial" or "drastic."
{¶ 33} However, many other districts, including our own, continue to require a substantial change of circumstances that was not contemplated at the time of the prior order. See, e.g., Reveal,
{¶ 34} In Heckman v. Heckman, Clark App. No. 2004-CA-62.
{¶ 35} "Finally, we address Ms. Heckman's contention that the trial court erred by determining that a substantial change in circumstances, as opposed to any change at all, is required for a modification of spousal support. We agree with her claim that neither *11
the decree nor R.C.
{¶ 36} We still agree with this view. Further, we disagree withKingsolver, which was not discussed in Heckman. As a preliminary point of disagreement, we note that requiring a "substantial" change in circumstances was not a judicial response to the 1986 amendments to R.C.
{¶ 37} "The real contention touches the right and duty of the court in a case like this to review, modify, or vacate a former decree granting alimony payable in installments, by an original suit or proceeding instituted for that purpose, when such power had not been reserved by the language and form of the former decree. It has been determined by this court that a decree for alimony is not necessarily affected by *12 the subsequent marriage of the wife, although such a marriage may, in some cases, have the effect of reducing the amount. * * *
{¶ 38} "`By the general doctrine, and as practiced in the country whence our laws are derived, aside, it seems, from all considerations of the form of the decree, the court may, from time to time, on any change in the circumstances of the parties, increase or reduce the sum allotted for alimony temporarily or permanently.' * * *
{¶ 39} "In this issue, as in all others, what is once adjudged is not to be retried. Yet, as the allowance is a continuous support for the wife, changed facts may require an altered decree. As observed by Dr. Lushington, `where there is a material alteration of circumstances, achange in the rate of alimony may be made.'"
{¶ 40} Notably, the Ohio Supreme Court referred in Olney to "any change in circumstances" as a generic description of events that could potentially cause a reduction or increase in alimony. However, the condition required for modification was whether a "material alteration" of circumstances had occurred. The reason for requiring a material alteration of circumstances was concern over finality of decrees and a recognition that decrees should not lightly be set aside.
{¶ 41} Subsequently, the Ohio Supreme Court held in Law v. Law (1901),
{¶ 42} "Where the terms of an agreement between the parties have been *13
approved by the trial court, and have been embodied by reference in the decree, such decree is not subject to modification upon petition by one of the parties in the absence of fraud or mistake, and in the absence of a reservation by the trial court of jurisdiction with reference to the agreed terms of alimony." Taylor v. Taylor (Dec. 18, 1975), Franklin App. No. 75AP-369,
{¶ 43} Where an agreement did not exist, but the alimony was ordered by decree, the general law applied was that:
{¶ 44} "[E]ven in the absence of a specific provision in the decree retaining jurisdiction, the trial court may exercise its equity jurisdiction and modify the decree as it would relate to periodic alimony payments upon proof of changed circumstances of the parties."
{¶ 45} In the latter event, the change in circumstances "must bematerial and not purposely brought about by the complaining party, they must be considered on the basis that the judgment sought to be modified was proper when made, and they must be of such nature or character that they could not have been reasonably anticipated and taken account of at the time of the original trial or hearing.
{¶ 46} "A change in the financial condition of either the ex-husband or the ex-wife may justify modification of the alimony award, if thechange is material or substantial, and the alleged change was not one which the trial court expected and probably made allowances for when entering the original decree." Id. (Emphasis added; citations omitted).
{¶ 47} Thus, after 1885, and well before the amendment of R.C.
{¶ 48} In 1976, the Ohio Supreme Court issued a decision involving a request to terminate alimony payments where the parties' separation agreement did not reserve jurisdiction to modify the agreement.Wolfe v. Wolfe (1976),
{¶ 50} After extensively considering the issue of jurisdiction to modify, the Ohio Supreme Court concluded in Wolfe that prior cases in Ohio had alluded to the "inviolability of an alimony decree which is formulated by the incorporation of an agreement of the parties." Id. at 416. However, the court reviewed an annotation on modification of alimony decrees, and noted that many courts allowed modification of periodic payments for alimony even though based on agreement, under one of the following three rationales: (1) public policy; (2) the theory that incorporated agreements are advisory, rather than binding on courts; and (3) the concept that agreements lose their contractual nature once they are adopted by a court and are merged into the decree. Id. at 416, citing Annotation (1975), 61 A.L.R. 3d 520, 551-52.
{¶ 51} The Ohio Supreme Court acknowledged that settlements of property rights are not modifiable, but observed that it had previously adopted the view that obligations of child support and alimony are imposed not by contract but by decree, where an agreement is incorporated in a decree. Therefore, the court adopted the merger doctrine for alimony modification proceedings and held that a decree would not be subject to modification if the alimony award "is not solely for support but is in settlement of property rights." Id. at 418. The court then noted that:
{¶ 52} "It is self-evident that a separation agreement, which purports to set a fair level of alimony for sustenance, as well as divide and distribute the property of the parties and settle their affairs, is not necessarily continually fair and equitable thereafter. We may assume that it is fair at the moment of its execution, and that it continues to be *16 fair at the time of divorce if the parties offer it for inclusion and merger into the decree. At that point, all that can be said is that it sets a fair and equitable `initial level' of obligations.* * *
{¶ 53} "Such initially fair agreements may be rendered manifestly oppressive in countless situations, such as where the custodian of the children fails to provide proper care and guidance, or where the receiver of alimony makes no attempt at self-support * * * or where the economic situation of either or both of the parties drastically changes. The holding in this case, that a court has continuing modification jurisdiction over alimony for sustenance awards, is to assure that such awards are continually just." Id. at 418 (footnotes omitted).
{¶ 54} Accordingly, Wolfe allowed courts to modify alimony, even though the parties had reached agreement, and had also failed to provide for a reservation of jurisdiction in their agreement. AfterWolfe was decided, trial courts continued to require a substantial or material change of circumstances before permitting modification of alimony.3 However, while the substantial circumstances requirement remained unchanged, Wolfe's adoption of implied reservation of continuing jurisdiction was the *17 subject of debate.
{¶ 55} In 1984, the Ohio Supreme Court limited Wolfe to divorce actions, holding that trial courts do not retain continued jurisdiction to modify periodic alimony payments in dissolution actions. McClain v.McClain (1984),
{¶ 56} In 1984, the Ohio Supreme Court also held that where the parties have agreed to, and the trial court has decreed, sustenance alimony for an ascertainable amount over an ascertainable term of years, the award is not subject to modification absent an express reservation of jurisdiction. Colizoli v. Colizoli (1984),
{¶ 57} Subsequently, in 1985, the Ohio Supreme Court again distinguished Wolfe, in a case involving a divorce decree, rather than a separation agreement. This time, the Ohio Supreme Court stated that the trial court lacks jurisdiction to modify *18
sustenance alimony awarded for a fixed period of years, even though the decree is subject to termination in the event of remarriage, death, or cohabitation. Ressler v. Ressler ( 1985),
{¶ 58} These problems were addressed when R.C.
{¶ 59} "According to testimony before the House Civil and Commercial Law *19 Committee, some Ohio courts will not modify alimony agreed to in a separation agreement involved in a dissolution of marriage case evenif the parties expressly have provided in the agreement that the alimony is modifiable by a court. The courts have concluded that the Revised Code does not grant them continuing jurisdiction over alimony in such a case and that only the General Assembly, not the parties to a proceeding, can confer jurisdiction on the courts." Id. at 2-3 (emphasis in original).
{¶ 60} H.B. 358 proposed changes that would govern modification of orders in both divorce and dissolution actions. Consistent with the fact that only the legislature can confer jurisdiction, new subsection (D) was added to R.C.
{¶ 61} "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 the effective date of this amendment, the court that enters the decree of divorce or dissolution does not have jurisdiction to modify the amount or terms of the alimony unless the court determines that the circumstances of either party have changed and unless one of the following applies:
{¶ 62} "(1) in the case of a divorce, the decree or 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;
{¶ 63} "(2) in the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony." 141 Ohio Laws, Part II, 3388, 3389.
{¶ 64} As a jurisdictional matter, the amended statute required both a change of *20 circumstances and a reservation of jurisdiction. This was a change in the law as established in Wolfe, since implied reservation of jurisdiction would no longer be allowed. In discussing existing law, the Judiciary Committee Report also stated that "changed circumstances commonly is [sic] the basis for such a modification." Am. H.B. 358, as reported by S. Judiciary, at 1. By referring to the common basis for modification, the legislature clearly indicated an awareness of the existing requirements being applied by courts.
{¶ 65} After the 1986 amendments to R.C.
In our view, Leighner simply applied well-established law that:
{¶ 66} "Where modification of an existing order for the payment of sustenance alimony is requested, the threshold determination is whether the order can be modified, which requires a finding of a change in circumstances since the order was entered. The change in circumstances must be substantial and must be such as was not contemplated at the time of the prior order. Only if the necessary prerequisite has been satisfied may the trial court move on to a consideration of whether the order should be modified." Leighner (1986),
{¶ 67} As is evident, the case cited by Leighner (Bingham) was issued well before the 1986 enactment of R.C.
{¶ 68} Furthermore, the Tenth District would not have been in a position to adopt a judicial definition in response to the alleged lack of definition of "changed circumstances" in R.C.
{¶ 69} The Tenth District decision in Leighner was issued in June, 1986, which was only about two months after the amendments. The original order for periodic alimony in Leighner was also entered two years before the request for modification was filed.
{¶ 70} In 1991, a number of changes to the domestic relations laws became effective, including the addition of subsection (F) to R.C.
{¶ 71} We see no indication that this was the General Assembly's intent. In contrast to the debate over implied reservation of jurisdiction, courts had routinely required a substantial change of circumstances in cases where the 1986 amendments *22
applied, without any indication of a dispute over interpretation of the amended statute. See, e.g., Sony v. Sony (August 2, 1990), Franklin App. No. 1367,
{¶ 72} Legislative history also fails to reveal any concern over jurisdictional issues in the alimony context. For example, in March, 1986, the 116th General Assembly created a 15 member Domestic Relations Task Force for the purpose of conducting a comprehensive review of Ohio's domestic relations law. The Task Force held eleven public hearings in locations representing every region of the state. See The Domestic Relations Task Force Final Report Submitted to the Ohio General Assembly pursuant to Sub. S. JR 12 of the 116th General Assembly, p. 1. Following these public hearings, the Task Force Report was submitted to the General Assembly in June, 1987.
{¶ 73} The Report noted that public testimony did not focus on the issue of alimony. Id. at 10. However, the Report did contain some general comments on alimony. For example, the Report discussed alimony support payments and nationwide statistics on the number of women being granted alimony, which had declined to some extent between 1980 and 1984. After discussing the current state of the law on alimony, the Report recommended that R.C. 3105,18(A) be amended to allow alimony out of the *23
marital estate as the court deemed reasonable to either party. The report concluded that this change would clarify what judges could consider as alimony. It would "exempt separate property from distribution and require alimony to be allowed only from marital property or as maintenance payments." Id. at 14. However, the Task Force Report did not mention either R.C.
{¶ 74} Recommendations were made on a wide variety of other subjects, including resolving disputed custody and visitation issues in mediation; penalizing false reports of abuse during domestic relations cases; adoption of shared parenting laws; adoption of factors to be considered in forming visitation orders; adoption of child support guidelines; performance standards for domestic relations courts; and changes in domestic violence laws.
{¶ 75} Subsequently, in July, 1990, the 118th General Assembly enacted H. B. 514, which replaced actions for alimony only with actions for legal separation, established procedures for distributing separate property and marital property in actions for divorce or legal separation (new R.C.
{¶ 76} and eliminated some existing factors used to determine the type and amount of spousal support. Some new factors to be used in the spousal support determination were also added. See 143 Ohio Laws, Part III, 5426-5457. See also, Sub. H.B. 514, as reported by S. Judiciary, p. 1., Ohio Legislative Service Comm. 1989-1990, LSC Box 43. And, of course, H.B. 514 also added R.C.
{¶ 77} In discussing the existing law on spousal support, the Judiciary Committee Report for H. B. 514 indicated that currently, reasonable alimony could be awarded, and *24 courts were required to consider all relevant factors in determining whether alimony was necessary. Id. at 6. This part of the Judiciary Committee Report did not mention existing law on modification of alimony.
{¶ 78} In describing the operation of the proposed bill, the Judiciary Committee Report noted that courts would be able to award spousal support, but only after determining disbursement of property under the bill. Id. at 7. With respect to modification, the Judiciary Committee Report stated only that:
{¶ 79} "For the purposes of modifying a prior order for periodic payments of money as spousal support in a divorce or dissolution action, or in an action for legal separation, a change in circumstances of a party (which is necessary for modification) would include, but not be limited to any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses." Id.
{¶ 80} Finally, the Judiciary Committee Report observed that the bill would eliminate existing specific requirements for determining the type and amount of alimony, such as property brought to the marriage by either party and contributions of a homemaker. Other factors were also being added, such as income of the parties from all sources, including income from property "distributed" under the martial property and separate property division; mental conditions of the parties; and contributions of each party to the education of the other. Id. at 8.
{¶ 81} In contrast to the specific discussion of elements that were being eliminated and changed in R.C.
{¶ 82} In view of the well-established nature of the existing law since 1885, and the legislature's failure to even mention what would have been a significant change, we do not share Kingsolver's view of the 1991 amendments. If these amendments were intended to disrupt law that had been established for many years, and had intended to confer jurisdiction on trial courts for "any" change in circumstances, regardless of the magnitude of the change, the General Assembly would likely have said so. Furthermore, as a matter of public policy, the General Assembly would not have intended to confer unrestricted ability on litigants to continually re-open judgments to re-litigate support issues, particularly since it had restricted jurisdiction in 1986. And, as we mentioned before, there is no indication that any significant events, including conflicting case interpretations or struggle applying the law, had occurred between 1986 and 1990, when the statute was again amended.
{¶ 83} We also do not find the language used by the General Assembly to be free from ambiguity. In assessing changes of circumstances prior to the 1991 amendments, many courts had focused their attention on the factors specifically listed in R.C.
{¶ 84} Rather than focusing on the increase in salary, the court stressed that the *26
ex-wife's earning ability had not increased since the divorce, because she had not received more training, nor did she work for a different employer so that she could substantially increase her salary. Id. See also, e.g., Moore v. Moore (June 19, 1979), Franklin App. No. 78AP-755,
{¶ 85} This does not mean that Ohio courts never considered increases in income. For example, the court in Bingham observed that it was inconceivable that a substantial change of circumstances had not occurred in the eight years since the original decree was entered, "if only in view" of the fact that the support recipient's earnings had more than tripled.
{¶ 86} Courts also considered changes in living expenses, even though that was not an item listed in R.C.
{¶ 87} Nonetheless, prior to 1991, wages, salaries, bonuses, medical expenses, and living expenses were not among the items specifically listed in R.C.
{¶ 88} The legislature could also have used "any" as an all-inclusive term designating all items within a particular category. For example, "living expenses" and "medical expenses" are broad categories. The use of the word "any" eliminates arguments about whether a specific type of expense within these categories could be considered in deciding if a change of circumstances has occurred. We find these interpretations more logically consistent with the history and purpose of alimony and spousal support modification than Kingsolver's conclusion that "any" change of circumstances confers jurisdiction on courts to modify its prior orders.
{¶ 89} Furthermore, some of the factors listed in R.C.
{¶ 90} In a concurring opinion, Justice Wright commented on the fact that R.C.
{¶ 91} Accordingly, we conclude that when R.C.
{¶ 92} Kingsolver discounted this concern based on existing guidelines governing frivolous pleadings and its belief that the use of the word "any" could not reasonably be contemplated to mean a nominal change.
{¶ 93} Furthermore, guidelines on frivolous pleadings indicate that a pleading will be considered frivolous if it is "not warranted under existing law." R.C.
{¶ 94} In the present case, the trial court's failure to apply the correct legal standard was an abuse of discretion, since decisions are unreasonable if they are not supported by a sound reasoning process.AAAA Enterprises, Inc. (1990),
{¶ 95} Accordingly, the order of modification in this case must be reversed, and this cause must be remanded so that the trial court can consider whether a substantial change of circumstances has occurred that was not contemplated by the parties at the time of the original decree. If this threshold inquiry is satisfied, the court may then *30 determine whether the existing order should be modified and what amount of support is reasonable and appropriate.5
{¶ 96} Based on the preceding discussion, the Second and Third Assignments of Error are sustained.
{¶ 98} "THE TRIAL COURT ABUSED ITS DISCRETION BY NOT INCLUDING OR NOT IMPUTING RENTS FROM THE BENCHWOOD RENTAL IN DETERMINING APPELLEE'S INCOME FOR THE PURPOSE OF MODIFYING SPOUSAL SUPPORT."
{¶ 99} Under this assignment of error, Frances contends that the trial court abused its discretion by failing to include certain income for purposes of modifying *31 spousal support. A property that Stanley owned on Benchwood Drive generated $14,700 in yearly rental income, without deducting items like property taxes and insurance, but was sold during the pendency of the trial court proceedings. As we mentioned above, the magistrate imputed income to Stanley in the amount of $14,700 per year based on Stanley's decision to voluntarily decrease his gross income by selling a rental property. In ruling on Stanley's objections, the court excluded the rental income because it found insufficient evidence that Stanley sold the property in an effort to deprive Frances of support.
{¶ 100} Frances contends that the trial court improperly allowed Stanley to benefit from voluntary acts that reduced his income for spousal support purposes and also eliminated marital debt. The voluntary acts were Stanley's sale of the Benchwood property and his subsequent use of sale funds to pay off mortgages on personal and marital property. Stanley contends, however, that the Benchwood property was purchased with inherited funds and that he did not have to use his inheritance to produce income.
{¶ 101} In view of our disposition of the First and Second Assignments of Error, this assignment of error is moot. If the trial court reaches this issue on remand, we note for the court's guidance that "changes in income within the context of a spousal support modification must be involuntary and not brought on by the payor." Addington v.Addington, Scioto App. No. 05CA3034,
{¶ 102} We also note that the magistrate's decision, including the choice of imputing income, was premised on credibility. We have previously stressed that a *32
magistrate is "a subordinate officer of the trial court, not an independent officer performing a separate function." Wingard v.Wingard, Greene App. No. 2005-CA-09,
{¶ 103} Nevertheless, where a magistrate comments on credibility and the trial court does not take additional evidence as is authorized under Civ. R. 53(D)(4)(b), "the judgment of the magistrate on issues of credibility is, absent other evidence, the last word on the issue for all practical purposes." Quick v. Kwiatkowski, Montgomery App. No. 18620, 2001-Ohio-1498,
{¶ 104} In view of the disposition of the Second and Third Assignments of Error, the First Assignment of Error is moot.
{¶ 106} "THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING THE REDUCTION IN SPOUSAL SUPPORT EFFECTIVE MARCH 6, 2006." *33
{¶ 107} Under this assignment of error, Stanley contends that the trial court erred in its choice of the effective date of the reduction in spousal support. The trial court reduced support as of the date of the hearing before the magistrate, rather than the date on which Stanley served Frances with the motion to reduce support.
{¶ 108} Because this matter is being remanded, the cross-assignment of error is moot. We do note that such decisions are subject to an abuse of discretion standard. See, e.g., Ridenour v. Ridenour, Delaware App. No. 04CAF12082,
{¶ 109} Accordingly, the Cross-Assignment of Error is moot.
(Hon. Sumner E. Walters, retired from the Third Appellate District, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
DONOVAN and WALTERS, JJ., concur.