Tedrick v. TedrickTedrick v. Tedrick
Batsche & Batsche Law Firm, D. Andrew Batsche, 300 West Main Street, P.O. Box 75, Mason, Ohio 45040, for defendant-appellant
M. POWELL, P.J.
{1} Defendant-appellant, Kenneth Tedrick (“Husband“), appeals decisions from the Clermont County Court of Common Pleas, Domestic Relations Division, denying his motions to terminate spousal support and grant
Husband shall pay Wife $1,000.00 per month plus a 2% processing fee through CSEA in spousal support for seven years, beginning on the first day of journalization of the Decree of Dissolution for seven consecutive years or until the death of either party.
The Court specifically reserves jurisdiction to modify spousal support in the event of a change of circumstances of either party. The within support order is based upon the income of the parties as listed in the child support worksheet filed herewith. A change of circumstances is defined as a change in Husband‘s gross annual income of $10,000.00 or more. If the change in income is reduced income, such shall only be a change of circumstances if said reduction is due to factors outside of Husband‘s control and not his fault.
The reduction of Wife‘s income by $10,000.00 or more, if occasioned by factors outside of her control and through no fault of her own, shall also constitute a change of circumstances.
(Emphasis added.)
{3} In November 2013, Husband moved to terminate his spousal support payments because Wife was cohabitating with another man. The case proceeded to a magistrate who found the court did not have jurisdiction to terminate or modify spousal support based on Wife‘s cohabitation. The magistrate reasoned that the dissolution decree provided the court with jurisdiction to modify spousal support only when Husband‘s income changed by $10,000 or Wife‘s income was reduced by $10,000. The magistrate dismissed Husband‘s motion. The trial court affirmed the magistrate‘s decision.
{4} In June 2014, Husband filed a second motion to terminate spousal support due to Wife‘s remarriage. One month later, in July 2014, Husband filed a
{5} Wife requested attorney fees she incurred in responding to Husband‘s two motions to terminate support and his
{6} Husband now appeals, asserting three assignments of error.
{7} Assignment of Error No. 1:
{8} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED HUSBAND‘S MOTION TO MODIFY THE AWARD OF SPOUSAL SUPPORT AFTER WIFE‘S REMARRIAGE.
{9} Husband argues the trial court erred in denying his motion to terminate spousal support. Husband maintains the court had jurisdiction to modify spousal support as the “change in income” provision of the decree of dissolution was not the exclusive basis on which the court may modify support, but instead was an example of the type of circumstances which justified modification.
{10} Whether a trial court has jurisdiction to consider a modification of spousal support presents a question of law. Koehler v. Koehler, 12th Dist. Warren Nos. CA2012-06-058 and CA2012-07-059, 2013-Ohio-336, ¶ 9. Questions of law are reviewed by appellate courts de novo. Id.
{11}
{12} As the Ohio Supreme Court has recognized, a trial court lacks jurisdiction to modify a prior order of spousal support unless the decree expressly retained jurisdiction to make the modification and the court finds that a substantial change in circumstances has occurred and the change was not contemplated at the time of the original decree. Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, paragraph two of the syllabus.1 A trial court‘s jurisdiction is limited in this manner because “an agreement for spousal support that has been entered into in a divorce decree by a trial court is entitled to expectations of finality.” Id. at ¶ 15.
{13} In the decree of dissolution, the trial court specifically reserved jurisdiction to modify spousal support upon a change in circumstances. However, “change in circumstances” was restrictively defined by the decree as including only a change in the income of Husband by $10,000 or a $10,000 reduction of Wife‘s income. Therefore, the trial court‘s jurisdiction to modify spousal support was limited to those defined changed circumstances. Consequently, since Wife‘s remarriage was not within the decree‘s definition of “change of circumstances,” the trial court was without jurisdiction to modify spousal support upon that basis. See Michaels v. Michaels, 9th Dist. Medina No. 11CA0012-M, 2012-Ohio-641, ¶ 9; Kopczak v. Kopczak, 11th Dist. Ashtabula No. 2011-A-0056, 2012-Ohio-3014, ¶ 18.
{14} Husband argues that the “change in income” provision was not the exclusive basis upon which the court retained jurisdiction to modify spousal support. Rather, Husband argues that the “change in income” provision was merely an example of the type of circumstance which justified modification. In support of this position, Husband cites Hutchinson v. Hutchinson, 12th Dist. Clermont No. CA2009-03-018, 2010-Ohio-597, for the proposition that this court interprets spousal support modification clauses liberally. In Hutchinson, the divorce decree provided for the termination of spousal support upon remarriage, cohabitation or death, but permitted modification of spousal support upon a change in circumstances, without further defining change in circumstances. Based upon the foregoing we found that the restrictive circumstances upon which spousal support would terminate were inapplicable to modification of spousal support. Id. at ¶ 11. Unlike Hutchinson, in this case the dissolution decree specifically stated that a change in circumstances sufficient to modify spousal support was restricted to a change in income of either party of $10,000.
{15} Consequently, the trial court did not err in denying Husband‘s motion to modify spousal support. The trial court did not have jurisdiction, based upon Wife‘s remarriage, to modify spousal support. Husband‘s first assignment of error is overruled.
{16} Assignment of Error No. 2:
{17} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FAILED TO USE ITS EQUITABLE POWERS TO PROVIDE FOR RELIEF FROM JUDGMENT.
{18} Husband argues the trial court erred in denying his motion for relief from judgment under
{19} We review a trial court‘s decision granting or denying a
{20} To prevail on a
{21}
{22} We find that the trial court did not abuse its discretion in denying relief from judgment pursuant to
{23} Husband‘s arguments regarding the inequity of his continued support of Wife after she has remarried do not establish that he is entitled to relief from judgment under
{24} Husband also seeks relief from judgment due to the trial court‘s failure to consider the
{25} Finally, Husband claims he is entitled to relief from judgment because of ambiguity as to the changed circumstances which permit a modification of spousal support. As stated in the first assignment of error, the dissolution decree is not ambiguous and clearly
{26} Moreover, Husband is not entitled to relief from judgment under
{27} Consequently, the trial court did not err in denying Husband‘s motion for
{28} Assignment of Error No. 3:
{29} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING WIFE ATTORNEY FEES.
{30} Husband argues the trial court abused its discretion in awarding Wife attorney fees she incurred in responding to Husband‘s two motions to terminate spousal support and his motion for relief from judgment. Husband argues the court awarded attorney fees
{31} An award of attorney fees is within the sound discretion of the trial court. Reynolds-Cornett v. Reynolds, 12th Dist. Butler No. CA2013-09-175, 2014-Ohio-2893, ¶ 28. A trial court‘s decision to award attorney fees will be reversed only if it amounts to an abuse of discretion. Id.
{32} Pursuant to
{33} In the case at bar, the magistrate awarded Wife attorney fees in the amount of $3,000. The award was based on the attorney fees Wife incurred opposing Husband‘s November 2013 motion to terminate spousal support, June 2014 motion to terminate spousal support, and July 2014 motion for relief from judgment. Wife had requested an award of $6,101 in fees, consisting of $3,200 of fees primarily incurred through Husband‘s first motion to terminate and $2,901 of fees primarily incurred through Husband‘s second motion to terminate and
{34} In finding the attorney fee award equitable, the magistrate noted Wife‘s counsel‘s $200 hourly fee was reasonable and customarily charged in the community, Wife currently works part-time and earns $9,100, Wife‘s new husband pays most of the couple‘s bills, and Wife pays for her household‘s utilities, cable, cell phone, and groceries. In regards to Husband, the magistrate noted that he earned $90,000 in 2014, Husband pays and Wife receives $1,885 in child and spousal support per month, Husband incurred $2,500 in attorney fees in regards to the motions, and Husband cohabitates with his girlfriend in a house paid
{35} Based on all the facts and circumstances presented in this case, we find that the trial court did not abuse its discretion in ordering Husband to pay $3,000 of Wife‘s attorney fees. The magistrate properly considered the differences in income between the parties, their relative expenses, and the child and spousal support payments. The magistrate also found that Wife‘s counsel‘s hourly rate was reasonable and customarily charged in the area. Moreover, the magistrate‘s finding that the motions were duplicative is supported by the evidence. The dismissal of Husband‘s first motion to terminate spousal support due to the court‘s limited jurisdiction should have put Husband on notice regarding the court‘s interpretation of the dissolution decree. Instead of acknowledging the court‘s interpretation, Husband proceeded to file a second motion, again arguing that the court could modify spousal support on a basis besides a change in income. Lastly, we note that the duplicative nature of Husband‘s motions, and consequently the duplicative legal research and briefs reduced the attorney fees payable to Wife.
{36} Lastly, in her brief, Wife requests that Husband be ordered to pay her attorney fees associated with defending this appeal and requests this Court to remand the matter to the trial court for determination of reasonable attorney fees. We decline to remand on this basis as Wife has not filed a motion for fees pursuant to
{37} Consequently, we find that the trial court‘s order for Husband to pay $3,000 of Wife‘s attorney fees was not unreasonable, arbitrary, or unconscionable. Husband‘s third
{38} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.