Ohio Case Law Review by Topic: January 1, 2024 through February 29, 2024

Kelly v. Kelly, 12th Dist. Clermont No. 2021 DRD 01473, CA2023-06-038, 2024-Ohio-124

Civ. R. 60(B): mistake, fraud
ORC 3105.171(I): prohibition on modification

The effects of Ohio’s glacial history can even be seen in this wholly stylistic, utterly non-scientific illustration.

Dated: January 16, 2024
Affirming

Following the parties’ 2022 decree, Husband sought to set aside the agreement under Rule 60(B)(3) and (5), alleging he had lacked capacity to enter the agreement due to a stroke in 2020. As evidence of this, he cited a protection order filed by Wife in 2022, in which she alleged Husband’s stroke had affected his decision-making skills and emotional regulation.

The trial court denied Husband’s motion, based on insufficient evidence of his incapacitation, the mutually-reached terms of the agreement, and audio of the final 01/28/2022 hearing in which Husband was fully comprehensible.

Husband appealed, arguing that the trial court erred in denying his motion without an evidentiary hearing. Husband argued that his incapacitation at the time of the agreement led him to assent to an interest in the parties’ real property that was only payable in the event of its sale.

The Court disagreed, writing that it would only disturb a lower court’s 60(B) determination in cases of an abuse of discretion, and finding that no such abuse had occurred. A movant is “not automatically entitled to a hearing,” and must allege a sufficient factual basis for their motion.

The trial court did not abuse its discretion by denying Husband's motion for relief from judgment without an evidentiary hearing for multiple reasons. First, Husband failed to sufficiently support his claim of lack of capacity. Husband's conclusory statements as to his capacity are self-serving and otherwise not supported by the record. While Wife stated that Husband's stroke "affected his decision-making skills" such a statement does not suggest husband lacked the capacity to enter into contracts. With no factual support or evidence, Wife and Husband's statements in their legal filings as to Husband's capacities are simply bare, unsubstantiated allegations.

Instead, the Court found that Husband’s Rule 60(B) motion and appeal were an attempt to modify the parties’ decree without both parties’ consent, and thus to circumvent ORC § 3105.65(B). So finding, the Court affirmed.

Such modification is clearly prohibited under Ohio law without Wife's consent. Litigants cannot work around R.C. 3105.65(B)'s prohibition of modification of a separation agreement without spousal consent by merely claiming, without sufficient legal grounds and factual support, that they seek to rescind the agreement.

Nwafo v. Ugwualor, 12th Dist. Butler No. 20080495, CA2023-05-055, 2024-Ohio-189

Witness: credibility

Dated: January 22, 2024
Affirming

Following lengthy proceedings, Husband filed a Civ. R. 59(A) motion for a new trial, alleging that errors of his prior counsel led to property division errors exceeding half a million dollars, and significant overstatement of his earning capacity. Following a hearing on Husband’s motion, the trial court denied the same, citing Husband’s behavior throughout the divorce process, and the lack of evidence for any contention of irregularity, writing:

A motion for a new trial is not an opportunity to discover irregularities or new evidence nor is it a proper forum to engage in a fact-finding expedition based on no more than a hunch or suspicion.

Husband’s appeal followed, in which he argued his entitlement to a new trial based on irregularities in the proceedings, misconduct by Wife, newly discovered evidence, and Civ. R. 59(A)’s ‘catchall’ discretionary provision. The Court ultimately found “no merit” in his arguments, however, noting that most extreme irregularities in the proceedings had stemmed from Husband himself (Editor’s note: it would be dishonest not to admit the Court’s footnote here on Page 7 is the main reason this case made it onto the blog. Wife’s being represented by the estimable Diana Link helped, too.), and finding that what Husband characterized as misconduct was simply the trial court’s judgment of Wife as the more credible party. Further, the Court wrote, Husband identified no newly discovered evidence for his appeal, and relied instead on evidence that would have been available during the trial, or was furnished by Husband himself.

Finding no basis for Husband’s arguments for a new trial, the Court affirmed.

Jowiski v. Gustafson-Jowiski, 9th Dist. Lorain No. 97DU052353, 23CA011939

QDRO: abuse of discretion, ambiguity, coverture, impermissible modification, merely implements decree, subject matter jurisdiction
ORC 3105.171(I): (prohibition on modification)

Dated: January 22, 2024
Reversing and Remanding

Editor’s Note: For our office’s summary of this case’s prior Appeals Court decision, click here. Please also note that this case was not initially included in our CaseLaw update, but was added 05/03/2024.

As part of the parties’ 1997 divorce, Wife was awarded an interest in Husband’s pension based on a marital fraction that ultimately became a source of debate and the basis of a prior appeal. Husband challenged the QDRO Assignment to Wife, alleging that his ‘active’ contributions to the pension subsequent to the divorce were his own separate, nonmarital property. The trial court agreed to revise the QDRO upon Husband’s motion to do so, but the matter was ultimately reversed and remanded back to said trial court in an Appeals Court decision previously summarized on this blog.

On remand, the trial court found that “[t]he parties clearly intended that [Wife] was to receive one-half of [Husband’s] pension accumulated during the marriage” and that “awarding one-half of [Husband’s] entire pension past the date of the parties’ legal separation could not be foreseen at the time of [Husband’s] actual retirement.” (Emphasis sic.)

The trial court further found that, in revising the QDRO, it was not modifying the decree, but merely effectuating the parties’ original intent. Wife appealed, arguing the trial court lacked jurisdiction, and the Court agreed.

In her appeal Wife cited the original QDRO’s conformity with the decree provisioning, and argued that the original award was in fact unambiguous. And thus any modification thereof was clearly a modification of the decree, which requires “the express written consent or agreement to the modification by both spouses” under ORC § 3105.171(I). In reversing and remanding, the Court wrote:

While the trial court maintains that it did not modify the parties’ original divorce decree, we disagree with this conclusion. Husband’s motion specifically requested a modification of the decree language regarding the division of his pension in the QDRO. It is undisputed that neither the divorce decree nor the original stipulated QDRO distinguished between noncontributory and contributory portions of Husband’s retirement benefits. We conclude that changing the original stipulated QDRO to reflect such a distinguishment constitutes a modification to the parties’ divorce decree. Absent “the express written consent or agreement to the modification by both spouses[,]” the trial court did not have jurisdiction to modify the divorce decree and QDRO. R.C. 3105.171(I). Wife’s assignment of error is sustained.

Loewe v. Loewe, 9th Dist. No. DR 2016-04-1273, CA 30326, 2024-Ohio-323

Spousal Support: modification (change in circumstances; retirement), voluntary underemployment

Dated: January 31, 2024
Affirming

As part of the parties’ 2017 divorce, Husband was ordered to pay $5,500/month to Wife in spousal support, until the death of either spouse or modification by the trial court. Husband filed two motions in 2020, seeking modification and reduction of his spousal support obligation, the first due to his reduction in income while furloughed during the COVID-19 pandemic, and the second due to his reduction in income following his voluntary retirement in December 2020.

At a hearing on both of Husband’s motions, the parties testified as to their relative earning capacities and expenses, and Husband provided his reasoning for his voluntary retirement. Following this, the trial court granted Husband’s first motion for a reduction of his obligation while furloughed, but denied his motion for a reduction due to his voluntary retirement.

Husband appealed, arguing that the trial court erred in its finding that he was voluntary underemployed, and should not have imputed pre-retirement income to him in its calculation of his support obligation. Husband further argued that the trial court failed to consider Wife’s income from family businesses.

Noting its abuse of discretion standard of review, the Court disagreed and affirmed the trial court’s decision. A ‘change in circumstances’ meriting reduction in spousal support (under ORC § 3105.18(E)), the Court wrote, must be “substantial” so that the existing award is “no longer reasonable or appropriate.”

Here, [Husband] alleges that his voluntary retirement was a substantial change of circumstances that made the existing award no longer appropriate. “Retirement, whether voluntary or involuntary, may constitute a substantial change in circumstances unless it was undertaken early with the intention of circumventing spousal support obligations.” DiPalma at ¶ 12, citing Stevens v. Stevens, 2d Dist. Montgomery No. 27761, 2018-Ohio-2662, ¶ 23. “If the spouse retires with the intent of defeating the spousal award, the retirement is considered ‘voluntary underemployment,’ and the spouse’s pre-retirement income is attributed to him.” Koch v. Koch, 9th Dist. Medina No. 03CA0111-M, 2004-Ohio-7192, ¶ 21.

Finding no substantial change in circumstances, and that Husband had voluntarily reduced his income to avoid his spousal support obligation, the Court affirmed the trial court’s denial.

The Court similarly dismissed Husband’s second assignment of error, deferring to the trial court’s factual findings and credibility determinations, and finding insufficient basis for Husband’s allegation that the trial court’s decision was against the manifest weight of the evidence.

Yarosz v. Montgomery, 7th Dist. Jefferson No. 2021-DR-182, 23 JE 0006, 2024-Ohio-652

Marital Property: separate property, tracing

Dated: February 20, 2024
Affirming

Prior to the parties’ marriage, Wife purchased the marital home. Husband began cohabitating, and paying the entirety of the mortgage. When Husband sold his prior residence, he used its proceeds to improve the marital home. Husband provided written documentation concerning the sale and improvements to the trial court.

As part of the proceedings, Wife alleged she had made a $23,000 or $24,000 downpayment for the home in 2005, and that she had withdrawn money from a nonmarital IRA for the home, along with other unsubstantiated items related to a purported separate interest.

The trial court subsequently awarded Husband ownership of the home and a separate, non-marital interest in the equity therein. The trial court awarded Wife no non-marital equity, finding that she had provided no proof thereof, and ordered the remaining marital equity split between the parties.

Wife appealed, arguing that the trial court erred in its assignment of a separate property interest to Husband. Wife argued that Husband’s payment of proceeds from the sale of his previous house, into the marital asset, rendered such proceeds marital property. The Court disagreed, noting the documentary evidence provided by Husband by which he adequately traced his nonmarital interest in the home, and the lack of any contrary evidence provided by Wife.

The trial court did not err in awarding [Husband] the full amount of his premarital and separate interest in the marital residence and, in turn, did not err in denying [Wife’s] request for the same since she failed to prove her premarital or separate interest. While [Husband] traced his entire separate property interest, [Wife] failed to do the same and did not produce any evidence challenging the traceability that [Husband] demonstrated. We fail to find any error.

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