[Cite as Michaels v. Michaels, 2012-Ohio-641.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
ARTHUR J. MICHAELS C.A. No. 11CA0012-M
Appellant/Cross-Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KIMBERLY A. MICHAELS COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee/Cross-Appellant CASE No. 05 DR 0182
DECISION AND JOURNAL ENTRY
Dated: February 21, 2012
BELFANCE, Presiding Judge.
{¶1} Appellant Arthur Michaels (“Husband”) and Cross-Appellant Kimberly Michaels
(“Wife”) appeal from the judgment of the Medina County Court of Common Pleas, Domestic
Relations Division. For the reasons set forth below, we reverse and remand the matter for
proceedings consistent with this opinion.
I.
{¶2} This case has a lengthy procedural history, much of which has been recited in
prior appeals to this Court. See Michaels v. Michaels, 9th Dist. No. 09CA0047-M, 2010-Ohio-
963 (“Michaels II”); Michaels v. Michaels, 9th Dist. No. 07CA0058-M, 2008-Ohio-2251
(“Michaels I”). Thus, we will only briefly restate the relevant portions here.
{¶3} The parties were married July 26, 1986. In 2005, the parties filed for divorce.
The trial court initially entered a judgment entry/decree of divorce on May 9, 2007. Husband
appealed the entry, and while the appeal was pending, Husband filed a motion to modify spousal
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support on December 26, 2007. This Court reversed the trial court’s judgment on May 12, 2008.
Michaels I at ¶ 21. The trial court entered a judgment entry/decree of divorce on July 24, 2009,
reflecting the terms of a prior settlement agreement. Husband appealed that decision, and this
Court affirmed the trial court’s judgment in Michaels II.
{¶4} On March 2, 2010, Husband filed a motion to modify spousal support. On
January 11, 2011, the trial court concluded that:
Husband[’s] obligation to pay Spousal Support to Wife shall be modified and
Husband shall pay to Wife as and for spousal support the sum of $2,000 a month
for one hundred twenty (120) consecutive months. * * *
The modification [of] Husband’s obligation to pay spousal support shall be
retroactive to January 1, 2008. The Court finds that on January 1, 2008, Husband
was current in his monthly spousal support obligation of $6,500 and, in fact, had a
$2,000 overpayment.
In 2008[,] Husband paid $8,000. Giving Husband a $2,000 credit for the 2007
overpayment his 2008 arrearage is $14,000. Husband paid nothing for 2009
leaving him with an additional $24,000 arrearage. From June[] 2010[,] through
November[] 2010, Husband paid $2,000 a month for a total of $10,000 leaving an
arrearage of $12,000 (December not included.)
The Court therefore finds Husband has a spousal support arrearage, after
modification, of $50,000. Husband shall continue paying $2,000 a month at the
conclusion of his 120 month obligation until the arrearage is extinguished.
Considering the fact that the modification is retroactive to 2008, Husband is given
credit for 35 months (December 2010 not included) and his obligation shall
continue for an additional eighty five (85) months.
Husband has appealed, raising two assignment of error for our review, and Wife has cross-
appealed raising two assignments of error for our review. To facilitate our review, the
assignments of error will be rearranged.
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II.
HUSBAND’S FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN EXTENDING THE TERM FOR PAYMENT
OF SPOUSAL SUPPORT WHEN IT HAD NOT RETAINED JURISDICTION
OVER THE [] TERM OF THE SPOUSAL SUPPORT AND LACKED
JURISDICTION TO MODIFY IT.
{¶5} Husband asserts in his first assignment of error that the trial court erred in altering
the term of spousal support when the decree did not grant the trial court continuing jurisdiction to
do so. We agree.
{¶6} We note that while the trial court could properly determine the amount and
method of payment of arrearages, for the reasons outlined below, it did not have authority to
extend the underlying term of spousal support given the lack of reservation of jurisdiction. See
Boyer v. Boyer, 9th Dist. No. 03CA0137-M, 2004-Ohio-5450, ¶ 14-18 (concluding that the
“court’s failure to reserve jurisdiction to modify the spousal support award itself is exclusive of
and has no implications for the court’s ability to enforce the payment of arrearages[]”).
{¶7} R.C. 3105.18(E)(1) provides that:
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 May 2,
1986, and before January 1, 1991, or if a continuing order for periodic payments
of money as spousal support is entered in a divorce or dissolution of marriage
action that is determined on or after January 1, 1991, the court that enters the
decree of divorce or dissolution of marriage does not have jurisdiction to modify
the amount or terms of the alimony or spousal support unless the court
determines that the circumstances of either party have changed and unless one of
the following applies:
In the case of a divorce, the decree or a 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 or spousal
support.
(Emphasis added.)
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{¶8} The 2009 divorce decree states:
Effective the 1st day of May, 2007, the Husband shall pay, as and for spousal
support, * * * the sum of $6,500 per month * * * until the first of the following
events shall occur:
Wife’s death;
Husband’s death;
Wife’s remarriage;
Eighty-three (83) consecutive months.
The Medina County Domestic Relations Court shall specifically retain jurisdiction
to modify the amount of spousal support. However, the Medina County Domestic
Relations Court shall not retain jurisdiction to modify the term of the spousal
support.
{¶9} In the instant matter, the trial court clearly altered the term of spousal support. As
the language of the decree did not provide for the modification of the term of the spousal
support, and instead only provided the trial court with continuing jurisdiction to modify the
amount, the trial court was without jurisdiction to modify the duration of the spousal support
award. See Vengrow v. Vengrow, 9th Dist. No. 24907, 2010-Ohio-2568, ¶ 24 (concluding that
because “[t]he trial court had not reserved jurisdiction to modify the spousal support payments in
regard to duration in its February 25, 2003 judgment entry * * * the trial court was without
authority to extend the duration of support payments in its July 10, 2009 order[]”). Accordingly,
we sustain Husband’s first assignment of error.
WIFE’S SECOND ASSIGNMENT OF ERROR
THE COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
GRANTED HUSBAND’S MOTION TO MODIFY SPOUSAL SUPPORT
WHEN THE EVIDENCE AT TRIAL INDICATED THAT THE CHANGE IN
CIRCUMSTANCES PRESENTED BY THE HUSBAND, AT TRIAL, WAS
CONTEMPLATED AT THE TIME OF THE ORIGINAL DECREE.
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{¶10} Wife asserts in her second assignment of error that Husband failed to supply
evidence that the substantial change of circumstances prompting the spousal support
modification was not contemplated at the time of the original decree. However, as the trial court
failed to make the requisite findings under Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433,
2009-Ohio-1222, paragraph two of the syllabus, necessary to establish its jurisdiction, we do not
reach the merits of Wife’s specific argument.
It is well established that R.C. 3105.18 requires a two-step analysis before an
award of spousal support may be modified. The first step is jurisdictional * * * .
(Internal citations omitted.) Tufts v. Tufts, 9th Dist. No. 24871, 2010-Ohio-641, ¶ 8. The
Supreme Court held in Mandelbaum that:
[a] trial court lacks jurisdiction to modify a prior order of spousal support unless
the decree of the court expressly reserved jurisdiction to make the modification
and unless the court finds (1) that a substantial change in circumstances has
occurred and (2) that the change was not contemplated at the time of the original
decree.
Id. at paragraph two of the syllabus. “Once jurisdiction is established, the second step of the
analysis requires the trial court to determine whether the existing support order should be
modified in light of the change in circumstances that has occurred. Such a determination is
conducted in consideration of the factors set forth in R.C. 3105.18(C).” (Internal citations
omitted.) Tufts at ¶ 8.
{¶11} Here, as noted above, the decree reserved jurisdiction to modify the amount, but
not the term of spousal support. Thus, we examine whether the remaining prongs of
Mandelbaum have been met. This Court has interpreted Mandelbaum to require the trial court to
specifically find that there has been a substantial change of circumstances which was not
contemplated at the time of the original decree in order to modify a spousal support award. See
Johns v. Johns, 9th Dist. No. 24704, 2009-Ohio-5798, ¶ 8-10 (reversing the decision of the trial
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court because “[n]either the trial court’s decision, nor the magistrate’s decision include[d] the
findings that the change of circumstances was substantial and that the change was not
contemplated at the time of the divorce[]”); see also Weir v. Weir, 9th Dist. No. 10CA0058-M,
2011-Ohio-2992, ¶ 5 (concluding that “because the trial court failed to make the requisite finding
necessary to establish its jurisdiction over the matter as contemplated by Mandelbaum, the trial
court erred in proceeding to determine that the existing support order should be modified[]”);
Tufts at ¶ 11 (determining the trial court erred in modifying the spousal support award when “it
did not recount whether there was a substantial change in circumstances and that the change was
not contemplated by the parties at the time of the divorce[]”). The trial court’s entry in this
matter is devoid of either of these findings, and there is no language to suggest the trial court
considered the standard pronounced in Mandelbaum. While the trial court’s entry states that it
found that “there is a significant change in Husband’s financial well-being[,]” the trial court did
not go on to find that there was a substantial change in circumstances not contemplated at the
time of the original decree. Mandelbaum at paragraph two of the syllabus. Accordingly, as the
trial court did not make the requisite findings, it committed reversible error in modifying the
spousal support award. See Weir at ¶ 5; Tufts at ¶ 12; Johns at ¶ 10. Thus, we sustain Wife’s
assignment of error to the extent she asserts the trial court erred in modifying the spousal support
award. We reverse the trial court’s modification of the spousal support award, and remand for
proceedings consistent with this opinion.
HUSBAND’S SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DETERMINING THAT A DEFICIENCY IN
SPOUSAL SUPPORT EXISTED DURING A PERIOD IN WHICH THE
HUSBAND HAD LOSSES AND NO INCOME, HAD NO LIQUID ASSETS
AND HAD ALREADY MOVED THE COURT TO REDUCE THE SPOUSAL
SUPPORT FOR THOSE REASONS.
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WIFE’S FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
DESIGNATING THE EFFECTIVE DATE OF HUSBAND’S SPOUSAL
SUPPORT AS OF JANUARY 1, 2008.
{¶12} In light of our resolution of Husband’s first, and Wife’s second, assignments of
error we decline to address the remaining assignments of error.
III.
{¶13} In light of the foregoing, we sustain Husband’s first and Wife’s second
assignments of error, as discussed above. The judgment of the Medina County Court of
Common Pleas, Domestic Relations Division, is reversed, and this matter is remanded for
proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed equally to both parties.
EVE V. BELFANCE
FOR THE COURT
CARR, J.
WHITMORE, J.
CONCUR
APPEARANCES:
RONALD N. TOWNE and ANN L. WEHENER, Attorneys at Law, for Appellant/Cross-
Appellee.
JEFFREY V. HAWKINS, Attornery at Law, for Appellee/Cross-Appellant.