KATHLEEN M. WALPOLE v. THOMAS L. WALPOLE, III
No. 102409
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 13, 2015
[Cite as Walpole v. Walpole, 2015-Ohio-3238.]
BEFORE: Boyle, J., E.A. Gallagher, P.J., and Kilbane, J.
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-07-318177
RELEASED AND JOURNALIZED: August 13, 2015
Jack W. Abel
Abel & Zocolo Co., L.P.A.
815 Superior Avenue
Suite 1915
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Scott S. Rosenthal
Adam J. Thurman
Schoonover, Rosenthal, Thurman & Daray
1001 Lakeside Avenue
Suite 1720
Cleveland, Ohio 44114
{¶1} Plaintiff-appellant and cross-appellee, Kathleen M. Walpole, appeals from a judgment dismissing several of her post-decree motions for want of prosecution and granting defendant-appellee and cross-appellant‘s, Thomas Walpole‘s, motion to modify spousal support.
Kathleen‘s Assignments of Error
- The court erred in dismissing plaintiff, Kathleen Walpole‘s, motion to show cause.
- The court erred in not allowing the taking of Dr. Eric Thompson‘s deposition for use at trial and in not allowing the testimony of Jack W. Abel as part of plaintiff‘s claims and defenses.
- The court erred in failing to find the defendant, Thomas Walpole, in contempt of court for his failure to pay spousal support as ordered.
- The court erred in failing to award plaintiff, Kathleen Walpole, attorney fees and litigation expenses.
- The court erred in hearing defendant, Thomas Walpole‘s, motion to modify support in the first instance. The court was without jurisdiction to have done so.
- The court erred in granting defendant, Thomas Walpole‘s, motion to modify support. He failed to meet his burden of proof.
- The court erred in failing to conduct an independent review of the magistrate‘s decision in regards to the termination of the defendant[‘s], Thomas Walpole‘s, spousal support obligation.
Thomas‘s Cross-Assignments of Error
The trial court erred and abused its discretion by denying cross-appellant‘s motion to disqualify counsel and granting Mr. Agin‘s motion to quash and for protective order. - The trial court erred and abused its discretion by failing to award attorney fees, expert fees, and expenses to cross-appellant.
{¶2} After review, we do not find merit to the parties’ arguments on appeal or cross-appeal and affirm the judgment of the trial court.
Procedural History and Factual Background
{¶3} Kathleen and Thomas were divorced in June 2011 after 30-plus years of marriage.1 The divorce decree required Thomas to pay Kathleen $14,000 per month in spousal support for ten years. The trial court retained jurisdiction to modify the amount of spousal support “within the term based on defendant‘s retirement or any other changes in accordance with the
{¶4} On May 14, 2013, Thomas filed a motion to modify and/or terminate spousal support asserting that he would be retiring from Novelis Corporation, his place of employment for approximately 34 years, on July 15, 2013. At the time of his retirement, Thomas was 58 years old and had been president of Novelis North America, which is a Fortune 500 company. On July 17, 2013, Thomas filed a motion to stay spousal support payments since he had retired.
{¶6} The magistrate held hearings on the matters over four days in April and June 2014, and issued her decision in September 2014. The magistrate granted Thomas‘s motion to modify and/or terminate spousal support, terminating Thomas‘s obligation to pay spousal support as of July 15, 2013, the day Thomas retired from Novelis. But the magistrate denied Thomas‘s motions for attorney fees. The magistrate then dismissed all of Kathleen‘s motions for lack of prosecution because she failed to appear for all hearing dates despite being ordered to do so by the magistrate.
{¶7} Kathleen and Thomas objected to the magistrate‘s decision. The trial court overruled all objections and adopted the magistrate‘s decision in its entirety. It is from this judgment that Kathleen appeals and Thomas cross-appeals. We will address the parties’ arguments out of order for ease of discussion and together where they are interrelated.
Jurisdiction
{¶8} In her fifth assignment of error, Kathleen argues that the trial court lacked jurisdiction to hear Thomas‘s motion to modify and/or terminate spousal support. She maintains that there was no change of circumstance sufficient to confer jurisdiction because the parties had contemplated Thomas‘s retirement at the time of the divorce decree, and Thomas‘s retirement was voluntary.
{¶10}
[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, or other changed circumstances so long as both of the following apply:
(a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate.
(b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable.
{¶11} To “contemplate” means more than “think about“; rather, a party had to “intend” that an event happened for it to preclude a modification of spousal support. Kaput v. Kaput, 8th Dist. Cuyahoga No. 94340, 2011-Ohio-10, ¶ 22. “Courts have misconstrued that standard by applying a test of foreseeability: was the particular circumstance one reasonably to be anticipated? The better test is one grounded in the record, and contemplates a finding that the circumstance is not one that ‘was thoroughly considered at the time of the divorce.‘” Allread v. Allread, 2d Dist. Darke No.
{¶12} In a divorce decree, however, a court may specify triggering events that would constitute a change of circumstances pursuant to
{¶13} The movant bears the burden of proving that the parties did not contemplate the substantial change in circumstances at the time of the divorce. Potter v. Potter, 8th Dist. Cuyahoga No. 99247, 2013-Ohio-3531, ¶ 13, citing Tremaine v. Tremaine, 111 Ohio App.3d 703, 676 N.E.2d 1249 (2d Dist.1996).
{¶14} In this case, the trial court expressly reserved jurisdiction to modify spousal support based upon Thomas‘s retirement. Moreover, the change in circumstance — Thomas‘s retirement — was not taken into account by the parties or the court as a basis for the existing award when it was established, even though Thomas‘s retirement was foreseeable. Indeed, that is why the trial court reserved jurisdiction to modify spousal support upon Thomas‘s retirement. Rather, the spousal support award at the time of the divorce was based upon Thomas‘s income as a top executive at Novelis. As this court noted in the parties’ direct appeal from their divorce decree, “[t]he court found that such
{¶15} Kathleen further maintains that Thomas‘s retirement was voluntary, and thus, did not meet the requirements of an “involuntary decrease” in his wages under
{¶16} While it is true that Thomas‘s retirement was voluntary, he established that he did not do so to circumvent paying spousal support. He testified that he and Kathleen had always intended to retire at age 55, and that is why they had saved so much over the years. After their divorce, he said that he had to work a few more years to ensure that he had sufficient savings to retire. Notably, Kathleen acknowledged this fact in the parties’ direct appeal. See Walpole, 8th Dist. Cuyahoga No. 99231, 2013-Ohio-3529, at ¶ 57.
{¶17} Further, in Mlakar v. Mlakar, 8th Dist. Cuyahoga No. 98194, 2013-Ohio-100, this court found:
While a voluntary retirement does not necessarily preclude a finding that an obligor spouse is voluntarily unemployed, Drummer v. Drummer, 3d Dist.
No. 12-11-10, 2012-Ohio-3064, ¶ 31, a voluntary retirement “does not bar consideration of [a party‘s] decrease in income when determining if there was a substantial change of circumstances.” Robinson v. Robinson, 12th Dist. Nos. CA93-02-027, CA93-03-047, 1994 Ohio App. LEXIS 1436, *2-3 (Apr. 4, 1994). See also Reveal v. Reveal, 154 Ohio App.3d 758, 2003-Ohio-5335, 798 N.E.2d 1132, ¶ 18 (2d Dist.) (“a reduction in income due to voluntary retirement is literally a change of circumstances.“)
{¶18} Accordingly, Kathleen‘s fifth assignment of error is overruled.
Termination of Spousal Support
{¶19} In her sixth assignment of error, Kathleen argues that the trial court should have denied Thomas‘s motion to modify spousal support because he failed to meet his burden under
{¶20} A magistrate‘s decision on the issue of modification of spousal support is subject to a de novo review by the trial court. Potter, 8th Dist. Cuyahoga No. 99247, 2013-Ohio-3531, at ¶ 11. The trial court must conduct an independent analysis of the evidence in order to reach its own conclusions about the issues in the case and determine whether the magistrate properly determined the factual issues and appropriately applied the law. Id.;
{¶21} With respect to spousal support, a trial court has broad discretion in determining what is proper based upon the facts and circumstances of each case. Kunkle
{¶22} When determining whether spousal support is appropriate and reasonable, the trial court must consider the factors set forth in
{¶23} The factors enumerated in
{¶24} “The court need not expressly comment on each factor but must indicate the basis for an award of spousal support in sufficient detail to enable a reviewing court to
{¶25} At the hearing, Thomas testified that when he and Kathleen were married, they always intended to retire at age 55 which is why they saved so much money over the years. Thomas said he did not retire at 55 years old as planned because of the divorce; he worked a few more years to ensure that he would be financially comfortable. Thomas explained that when he retired, he received a lump sum payment of $637,500.
{¶26} Thomas testified extensively about his and Kathleen‘s retirement benefits that were divided equally in the divorce. Thomas testified to the amount of monthly income that he and Kathleen presently receive from these benefits and what they will receive from them in the future. Thomas further explained his remaining assets and investments he has as well as the income that he earns from these investments.
{¶27} John Stark testified that he was hired by Thomas to “analyze and review a report issued by [one of Kathleen‘s attorneys] dated March 10, 2014, as well as analyze the income and cash flow of Thomas Walpole and Kathleen Walpole.”
{¶28} He opined that in calculating annual income for support purposes, John had an annual income of $101,503 available to him after his retirement. He further opined that Kathleen had $96,116 available to her. These amounts will be explained further when discussing the magistrate‘s findings.
{¶30} In her decision, the magistrate reviewed the history of the case, including the parties’ extensive assets that were divided in the divorce.
{¶31} The magistrate found that the parties had extensive retirement benefits as a result of Thomas‘s years of employment at Novelis. Since Thomas had retired, the parties had begun receiving these benefits (or had the option of doing so). The magistrate reviewed each of these plans and the amounts the parties would receive each month. See also Walpole, 8th Dist. Cuyahoga No. 99231, 2013-Ohio-3529 (discusses the parties’ retirement benefits at length); and Walpole v. Walpole, 8th Dist. Cuyahoga No. 101900, 2015-Ohio-2157 (involves a dispute the parties had over a QDRO dividing one of the retirement plans).
{¶32} The magistrate also reviewed Thomas‘s testimony regarding his current assets, expenses, and income. The magistrate further found that Thomas received his final payroll income from Novelis in July 2013, and that he received a lump sum severance payment of $637,500 less taxes and withholding upon his separation from employment.
{¶33} The magistrate found that Kathleen still owed Thomas $172,172 to equalize the property division from the divorce, and another $12,554, $52,296, and $55,039 for
{¶34} The magistrate noted that at the time of the divorce, Thomas was president of Novelis Asia. His compensation at that time was complicated and consisted of various components as a result of working overseas. The court (at the time of the divorce) found that his income at the end of the marriage was $666,951, plus $28,000 ex patriot premium (for working in Korea), plus $28,500 location allowance, plus $155,397 for housing and other benefits, plus bonus income of $169,554. The trial court imputed $33,200 of income to Kathleen because she was licensed to teach children from kindergarten through eighth grade and had worked as a teacher during the marriage.
{¶35} The magistrate considered Thomas‘s expert opinion as well. The expert stated that Thomas‘s IRA provided him with approximately $9,453 in annual earnings that could be considered income for support purposes. Thomas also had income and capital gains from his portfolio dividends, which amounted to $92,050. The expert concluded that Thomas had a total of $101,503 as income for support purposes, and that this amounted to a reduction of 87 percent in income since his retirement.
{¶36} The magistrate found that it was unknown if Kathleen had earned any income in 2013 because she failed to show up for the hearings. But the magistrate found that Kathleen was capable of earning $33,200 based upon the trial court‘s finding in the divorce. Based upon Thomas‘s expert report, the magistrate found that Kathleen was capable of earning $7,916 in annual earnings from her IRA accounts. The magistrate
{¶37} The magistrate noted that Kathleen had received $750,000 in spousal support since 2009, but did not consider it as current income for determining support. But the magistrate stated that she could not make any other determinations regarding Kathleen‘s financial circumstances since Kathleen did not appear or present any evidence.
{¶38} The magistrate further noted that both parties have the ability to derive income from their assets that were divided in the divorce.
{¶39} The magistrate concluded that based upon the factors set forth in
{¶40} After review, we find no error in the trial court‘s decision to adopt the magistrate‘s decision granting Thomas‘s motion to modify or terminate spousal support. The magistrate thoroughly considered the relevant factors and extensive circumstances regarding spousal support. The evidence established that Thomas and Kathleen had
{¶41} Kathleen‘s sixth assignment of error is overruled.
Excluding Evidence
{¶42} In her second assignment of error, Kathleen argues that the trial court erred when it excluded the testimony of her expert and her attorney. We disagree.
{¶43} Kathleen cites to
At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any one of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds * * * (e) that the witness is an attending physician or medical expert, although residing within the county in which the action is heard[.]
{¶44} Notably, Kathleen failed to include the first sentence of
{¶45} It is well established that a trial judge has the power to regulate court proceedings. Lisboa v. Lisboa, 8th Dist. Cuyahoga No. 92321, 2009-Ohio-5228, ¶ 19. Likewise, a magistrate is “authorized to regulate the proceedings and to do everything necessary for the efficient performance of its responsibilities.” Regalbuto v. Regalbuto, 8th Dist. Cuyahoga No. 99604, 2013-Ohio-5031, ¶ 13, citing
{¶46} Thus, it was well within the magistrate‘s discretion to refuse Kathleen from using her physician‘s deposition under the circumstances of this case.
{¶47} Further, Kathleen argues in one sentence at the end of her second assignment of error that the trial court erred when it refused to allow her attorney to testify as to the “complexities of the case, fees, expenses and the like.” For the reasons set forth in the next assignment of error regarding the dismissal of her motions, we find no abuse of discretion in the trial court‘s refusal to allow Kathleen‘s attorney to testify.
{¶48} Kathleen‘s second assignment of error is overruled.
Dismissal of Kathleen‘s Motions
{¶49} In her first assignment of error, Kathleen argues that the trial court erred in dismissing her motion to show cause (and within this assignment of error, she includes
{¶50}
{¶51} Here, we apply a heightened abuse of discretion standard.
{¶52} Kathleen argues that the magistrate erroneously applied
{¶53} Regardless of whether Kathleen was subpoenaed, however, at the first hearing on April 16, the magistrate ordered Kathleen to appear at the hearing on the following day. And before the June hearing dates, the docket reflects that the magistrate issued the following entry: “It is ordered that trial will resume on June 5 and 6, 2014 before [the magistrate]. All parties and counsel are ordered to appear.”
{¶54} The record further reflects that the magistrate notified all parties on February 6, 2014, that the trial would begin on April 15, and go through April 17 (although it did not begin until April 16). On the first day of trial, Kathleen moved for a continuance, or in the alternative, a motion to excuse her appearance. The magistrate denied her continuance and excused her appearance for that day only. The magistrate
{¶55} At the close of his case, Thomas moved to dismiss Kathleen‘s motions. He moved to dismiss them again when Kathleen failed to present evidence (besides the CSEA records). The magistrate put Kathleen‘s counsel on notice several times. Kathleen still failed to appear and place any evidence on the record as to her financial status, an important factor when considering whether to modify spousal support (a motion that Kathleen also filed). Even if she submitted CSEA records showing that Thomas stopped paying spousal support in July 2013, that does not support her case because Thomas asserted as much in his motion to modify and his motion to stay, as well as at the hearing. Moreover, Kathleen failed to establish any of the other factors regarding the issue of spousal support.
{¶56} The fact that Thomas did not pay spousal support after he retired is also irrelevant to her argument now. In this case, the trial court adopted the magistrate‘s recommendation to terminate Thomas‘s spousal support as of the date he retired. He paid spousal support up until that time. Thus, Thomas was not in contempt. We find Kathleen‘s arguments regarding the dismissal of her motion to show cause to be without merit.
{¶58} Accordingly, we find no abuse of discretion in the trial court‘s adoption of the magistrate‘s dismissal of Kathleen‘s motions — even at the “heightened” abuse of discretion standard of review. Further, because we find no abuse of discretion in the trial court‘s dismissal of Kathleen‘s motions, we also find no abuse of discretion in the magistrate‘s refusal to allow Kathleen‘s attorney to testify as to the issue of attorney fees.
{¶59} Moreover, having found that the trial court properly dismissed Kathleen‘s motions, we summarily overrule Kathleen‘s third and fourth assignments of error arguing the merits of these motions.
{¶60} Accordingly, Kathleen‘s first, third, and fourth assignments of error are overruled.
Independent Review of Magistrate‘s Decision
{¶61} In her seventh assignment of error, Kathleen argues that the trial court failed to conduct an independent review of the magistrate‘s decision as it is required to do under
{¶62}
Action on objections. If one or more objections to a magistrate‘s decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.
{¶63} An appellate court “must presume that a trial court has performed an independent review of the magistrate‘s recommendations unless the appellant affirmatively demonstrates the contrary.” Barrientos v. Barrientos, 196 Ohio App.3d 570, 2011-Ohio-5734, 964 N.E.2d 492, ¶ 5 (3d Dist.). “[S]imply because a trial court adopted the magistrate‘s decision does not mean that the court failed to exercise independent judgment.” Pietrantano v. Pietrantano, 12th Dist. Warren No. CA2013-01-002, 2013-Ohio-4330, ¶ 14. A trial court may adopt a magistrate‘s decision in whole or in part pursuant to
{¶64} In this case, the trial court explicitly addressed Kathleen‘s objections, extensively responding to them, analyzing them, and ultimately overruling them. Accordingly, we find no merit to Kathleen‘s argument that the trial court failed to independently review the magistrate‘s decision.
{¶65} Kathleen‘s seventh assignment of error is overruled.
Thomas‘s First Cross-Assignment of Error
{¶67} Thomas‘s first cross-assignment of error is overruled.
Thomas‘s Second Cross-Assignment of Error
{¶68} In his second cross-assignment of error, Thomas argues the trial court erred when it denied his motion for attorney fees.
{¶69}
In any post-decree motion or proceeding that arises out of an action for divorce, dissolution * * * the court may award all or part of reasonable attorney‘s fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties’ assets.
{¶70} The statute specifically vests the trial court with discretion to determine whether to award attorney fees. Thus, a court‘s decision on a request for attorney fees will not be overruled unless there is “no sound reasoning process that would support that decision.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶72} Accordingly, we overrule Thomas‘s second cross-assignment of error.
{¶73} Judgment affirmed.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR