[Cite as Lindenmayer v. Lindenmayer, 2014-Ohio-3319.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VERNON C. LINDENMAYER : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
STEPHANIE L. LINDENMAYER : Case No. 13-CA-108
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Division,
Case No. 2008 DR 1286 DF
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: July 18, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
STEPHEN B. WILSON GEORGE W. LEACH
35 South Park Place 100 East Main Street
Suite 150 Columbus, OH 43215
Newark, OH 43055
Licking County, Case No. 13-CA-108 2
Farmer, J.
{¶1} On March 8, 2011, appellant, Vernon Lindenmayer, and appellee,
Stephanie Lindenmayer, were granted a divorce. Appellee was denied spousal support
and appealed. This court reversed in part and remanded the matter to the trial court on
the issue of spousal support. Lindenmayer v. Lindenmayer, 197 Ohio App.3d 580,
2011-Ohio-5511.
{¶2} Upon remand, the trial court issued a decree of divorce on February 7,
2012, ordering appellant to pay appellee spousal support in the amount of $500.00 per
month until the death of either party. Appellant appealed, challenging the spousal
support award and arguing the trial court should have included "remarriage" as a
condition for the termination of spousal support. This court agreed on the remarriage
condition, and reversed in part and remanded the matter to the trial court. Lindenmayer
v. Lindenmayer, 5th Dist. Licking No. 12-CA-00012, 2012-Ohio-3172.
{¶3} In response to this remand, the trial court filed a decree of divorce on July
18, 2012 to include termination of spousal support upon remarriage.
{¶4} On September 18, 2012, appellee filed a motion for contempt for
appellant's failure to pay spousal support. On October 31, 2012, appellant filed a
motion to modify spousal support based on a substantial change in circumstances
(appellee's cohabitation) and motion for contempt regarding appellee's failure to return
personal property. A hearing was held on September 30, 2013. By judgment entry filed
October 24, 2013, the trial court denied appellant's motion to modify spousal support
and denied both contempt motions.
Licking County, Case No. 13-CA-108 3
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "THE TRIAL COURT ERRED IN PERMITTING DEPENDENT-
APPELLEE'S PARAMOUR, WILLIAM JERVIS TO REFUSE TO RESPOND TO
APPELLANT'S QUESTIONS BY ASSERTING HIS FIFTH AMENDMENT RIGHT
AGAINST SELF-INCRIMINATION AND IN REFUSING TO GRANT PLAINTIFF-
APPELLANT A CONTINUANCE TO OBTAIN A TRANSCRIPT OF THE WITNESS'S
PRIOR TESTIMONY UNLESS PLAINTIFF-APPELLANT WOULD AGREE TO PAY
DEFENDANT-APPELLEE AN INCREASED AMOUNT OF SPOUSAL SUPPORT TO
BE APPLIED TOWARDS THE ARREARAGE WHEN THERE WAS ALREADY AN
ORDER IN PLACE ADDRESSING THAT ISSUE AND PLAINTIFF-APPELLANT WAS
IN COMPLIANCE WITH SAID ORDER."
II
{¶7} "THE TRIAL COURT ERRED IN NOT TERMINATING PLAINTIFF-
APPELLANT'S SPOUSAL SUPPORT OBLIGATION."
I
{¶8} Appellant argues the trial court erred in permitting a non-party witness,
William Jervis, to claim his Fifth Amendment privilege in answering questions posed by
his trial counsel. Appellant further argues the trial court erred in denying his request for
a continuance in order to review a trial transcript from Mr. Jervis's municipal court
criminal case (telecommunication harassment against appellant's former counsel). We
agree.
Licking County, Case No. 13-CA-108 4
{¶9} The matter was before the trial court upon appellee's September 18, 2012
motion for contempt for appellant's failure to pay spousal support, and appellant's
October 31, 2012 motion to modify spousal support and motion for contempt regarding
appellee's failure to return personal property.
{¶10} The basis of appellant's motion to modify spousal support was a
substantial change in circumstances to wit: appellee's cohabitation with Mr. Jervis, Mr.
Jervis's support of appellee, and the fact that appellee and Mr. Jervis had a child
together on November 26, 2012. September 30, 2013 T. at 18-20, 54-58, 68.
{¶11} In order to understand the issues presented sub judice, we must review
the procedural history. In Lindenmayer v. Lindenmayer, 197 Ohio App.3d 580, 2011-
Ohio-5511, ¶ 36, this court remanded the case to the trial court on the issue of spousal
support:
The purpose of spousal support is "for sustenance and support of
the * * * former spouse." Robbins v. Robbins, Clark App.No. 06CA0136,
2008-Ohio-495, 2008 WL 344143, ¶ 22, citing R.C. 3105.18(A). While we
herein indulge in the presumption that the court considered all the
statutory spousal support factors, Carroll, 2004-Ohio-6710, 2004 WL
2891928, it is no exaggeration in this instance to conclude that the trial
court's decision in this regard has left appellant at a near-poverty level.
She has lost her stake in the marital home, has no retirement money, and
is left, in her mid-forties, with some personal possessions, a 2008 Dodge
automobile, and two other vehicles with minimal value. Although not the
Licking County, Case No. 13-CA-108 5
result of the trial court's orders, she has also lost custody of her children,
gone through a bankruptcy, and faces the task of treating her bipolar
condition sufficiently to enable re-entry into the workforce, from which she
has been absent for over 15 years. We are cognizant that appellant has
not been made responsible for the bulk of the marital debt, has not been
ordered to pay child support, and has been, at least according to several
witnesses at trial, living with a male friend. However, considering the
significant disparity in the parties' incomes and the limitations on
appellant's occupational and economic situation in the foreseeable future,
we are persuaded upon review of the record that the court's disallowance
of spousal support and refusal to retain jurisdiction thereon was
unreasonable and unconscionable under the circumstances, and thus
constituted an abuse of discretion.
{¶12} In response to our remand, the trial court filed a decree of divorce on
February 7, 2012, stating the following:
The Court notes that the defendant cohabitates with an unrelated
male who the evidence shows is her boyfriend. The Court also notes the
unequal distribution of marital debt to the plaintiff. The plaintiff is the
residential parent of the two children of the parties. The defendant pays
no child support. However, the plaintiff does receive approximately
$9,000.00 a year in social security benefits for the children.
Licking County, Case No. 13-CA-108 6
The Court thus orders spousal support in the amount of $500.00
per month plus processing fee. Said order shall continue as a permanent
order or until the death of either party.
The Court retains jurisdiction regarding the issue of spousal
support, both in amount and duration. Specifically, the Court retains
jurisdiction regarding any change in the financial situation of the parties or
the living situation/status of the parties.
This order shall be effective upon the filing of the original Judgment
Decree of Divorce. However, any spousal support arrearage created by
this entry shall be paid by the plaintiff at $50.00 a month until
extinguished.
{¶13} Appellant appealed this order and assigned as error the following: "I. THE
TRIAL COURT ABUSED ITS DISCRETION IN AWARDING SPOUSAL SUPPORT TO
APPELLEE, BOTH AS TO AMOUNT, DURATION, AND CONDITIONS FOR
RESERVATION OF JURISDICTION." In our decision, Lindenmayer v. Lindenmayer,
5th Dist. Licking No. 12-CA-00012, 2012-Ohio-3172, ¶ 18, we remanded the matter to
the trial court to include the condition of "remarriage":
Husband also asserts the trial court should have included
"remarriage" and "cohabitation" as conditions for the termination of the
spousal support award. We agree with Husband the trial court should
have included "remarriage" as a condition for the termination of the
Licking County, Case No. 13-CA-108 7
support order. However, although Wife was cohabiting at the time of the
final hearing, we do not find "cohabitation" should necessarily mandate
termination of spousal support. The trial court was aware of Wife’s living
arrangements and factored such when it determined the amount of
support.
{¶14} In response to this remand, the trial court filed a decree of divorce on July
18, 2012 to include termination of spousal support upon remarriage.
{¶15} On October 31, 2012, appellant filed the present motion requesting
modification of spousal support:
In the Decree of Divorce filed on March 8, 2011, no spousal support
was ordered. However, this was later modified in the Decree of Divorce
(Remand) filed on February 7, 2012, in which Plaintiff was ordered to pay
spousal support in the amount of $500.00 per month plus processing fee.
This ruling was upheld in the Decree of Divorce (Remand II) filed on July
18, 2012. Since that time there has been a substantial change in
circumstances warranting a modification, which Plaintiff intends to address
more fully at the time of the final hearing in this matter.
{¶16} During the September 30, 2013 hearing on the motion, appellant's trial
counsel proffered the following regarding Mr. Jervis (T. at 70):
Licking County, Case No. 13-CA-108 8
MR. WILSON: Thank you, Your Honor. Your Honor, for the record
the witness [Mr. Jervis] would be asked and would testify with respect to
Licking County Municipal Court Case Number 12 CRB 2598, which was
heard in the Licking County Municipal Court on September 26th, 2013, in
which the defendant, William Jervis, took the witness stand, testified
freely, and openly waiving his Fifth Amendment right. And did testify in
that case that he supported Stephanie Lindenmayer, and that would be
directly relevant to the motion to terminate or modify spousal support in
the pending case for which Mr. Jervis has been called as a witness. That
would be the extent of the proffer, Your Honor.
{¶17} Said proffer was done without the municipal court transcript of the hearing.
The trial court asked if trial counsel wished a continuance, presumably to obtain the
transcript. T. at 71. However, the trial court made the continuance contingent on the
payment of an additional $50.00 per month on the arrearage of spousal support. T. at
78. Appellant's trial counsel refused and the trial court denied the continuance. T. at
78-79.
{¶18} The motions before the trial court had been pending for over eleven
months. Appellant's trial counsel changed because of telecommunication harassment
and threats by Mr. Jervis, and Mr. Jervis purposely failed to provide documents to
appellant's trial counsel as requested until the trial court ordered him to comply on
November 29, 2012. On January 18, 2013, the trial court issued a show cause order
Licking County, Case No. 13-CA-108 9
against Mr. Jervis for failing to comply. Mr. Jervis sought three continuances which
were denied (June 19, July 30, and October 17, 2013).
{¶19} Although we can appreciate the trial court's frustration over the delays, the
delays were not caused by appellant or appellant's trial counsel, but by Mr. Jervis,
appellee's live-in boyfriend. At a minimum, we find the trial court should have granted a
continuance that was not contingent on an increase in spousal support arrearage.
{¶20} Assignment of Error I is granted.
{¶21} The judgment of the Court of Common Pleas of Licking County, Ohio,
Domestic Relations Division is hereby reversed, and the matter is remanded to said
court to permit questioning of Mr. Jervis relative to Evid.R. 801(D)(1).
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
SGF/sg 616