{¶ 2} The Reveals were married in 1961 and they had four children. In the final divorce decree, the court ordered Danny to pay Lynn $72,000 a year in "alimony" payable at $6,000 per month until Lynn died or remarried. The court retained jurisdiction to review the alimony award. Danny was ordered to assign Lynn $318,000 out of his interest in a certain profit sharing plan in accordance with a Stipulated Qualified Domestic Relations Order.
{¶ 3} Danny remarried in 1988 and he has two children from that marriage, ages 13 and 11.
{¶ 4} In March 2002, Danny moved to modify the spousal support (previously "alimony") award contending that there had been material changes in his circumstances since the divorce. At the hearing, Danny testified that the income from his surgical practice was anticipated to drop from $315,000 in 2001 to approximately $215,000 in 2002. He explained that reimbursements from insurance carriers and Medicare had decreased substantially. He testified he presently had approximately $200,000 in two separate retirement accounts.
{¶ 5} On cross-examination, Dr. Reveal admitted that his medical corporation provides him a leased car valued at $400 a month and pays for his family's health *Page 760 insurance in the amount of $1,000 a month. In addition, Dr. Reveal indicated he usually receives an annual bonus payment of $10,000 towards his 401(K) plan.
{¶ 6} Lynn Reveal testified that she was 60 years of age and that she had not remarried since the divorce. She said she lives alone on her spousal support. Although she earned two associates degrees over the years, she said she was presently unemployed. She acknowledged that her retirement account had a value as of May, 2002 of $792,410 with income of $5800 annually.
{¶ 7} In denying Dr. Reveal's motion to modify his spousal support obligation, the magistrate made the following findings:
{¶ 8} "At the time of the parties' divorce, Dr. Reveal filed an affidavit indicating that his annual income was $296,000. The court finds that defendant has failed to demonstrate that a substantial change in circumstances has occurred since the initial determination of spousal support in this matter. In the tax year 2001 Dr. Reveal had annual income of $315,000. For the tax year 2002 Dr. Reveal's own employee information indicates that his income could be anywhere from $250,000 to $300,000. The court finds that there has been no substantial change in Dr. Reveal's income since the initial award for spousal support. Dr. Reveal also argues that as a result of him becoming remarried and having two minor children in his household this would justify a decrease in his spousal support obligation. The court does not find this argument to be persuasive. Dr. Reveal cannot voluntarily enter into another relationship and incur additional expenses that could result in a reduction in his spousal support obligation. Additionally, Dr. Reveal did not demonstrate that the responsibilities of his new family affect his ability to pay the spousal support in any fashion.
{¶ 9} "Additionally, the court has considered that the plaintiff is 60 years old and very unlikely to ever be able to obtain gainful employment. Although plaintiff's IRA account has increased substantially since the parties' divorce, that in and of itself does not constitute a substantial change in circumstances that would warrant a decrease in spousal support. Although defendant requested the court take judicial notice of the interest rate on U.S. Treasury Notes, no evidence was submitted demonstrating plaintiff was realizing any income from her investments."
{¶ 10} In overruling Dr. Reveal's objection to the magistrate's report, the trial court noted although Lynn Reveal's IRA accounts have increased since the divorce, said increase would have been contemplated at the time of the divorce. The court noted that Mrs. Reveal had monthly living expenses of $5489.07 and Dr. Reveal had expenses totaling $4650. The court concluded that Dr. Reveal had failed to demonstrate that there was a substantial change in his circumstances from the initial award in 1987. *Page 761
{¶ 11} Dr. Reveal argues that the trial court abused its discretion in denying his modification motion because Mrs. Reveal's retirement account grew by approximately 250% from 1987 to the present. Dr. Reveal argues that this fact amounts to a substantial change in circumstances justifying the modification of his spousal support obligation to Mrs. Reveal.
{¶ 12} R.C. 3105.18(E) provides that the court that entered the divorce decree does not have jurisdiction to modify the amount of alimony or spousal support unless the court determines that the circumstances of either party have changed. R.C. 3105.18(F) provides that a change of 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.
{¶ 13} R.C. 3105.18(C)(1) provides that in determining whether spousal support is appropriate and reasonable and in determining its amount and "duration" the court shall consider, inter alia, the retirement benefits of the parties.
{¶ 14} The circumstances which a court must find have changed to support modification of a spousal support order are those set out at R.C. 3105.18(C)(1)(a) through (n) as they pertain to either party. To satisfy that test, "the change must be one that is substantial and not contemplated at the time of the prior order." Tremaine v. Tremaine (1996), 111 Ohio App.3d 703, 706. The burden of showing that a reduction of spousal support is warranted is on the party who seeks the reduction.Haninger v. Haninger (1982), 8 Ohio App.3d 286, 8 OBR 380, 456 N.E.2d 1228. Ordinarily, a motion to modify sustenance support payments invokes the discretionary authority of the trial court. See, Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. And in the usual case, the order of the trial court allowing or disallowing a change in spousal support will not be disturbed in the absence of a showing of an abuse of discretion. See,McCoy v. McCoy (1995), 105 Ohio App.3d 651; Bauer v. Bauer (April 15, 1982), Montgomery App. No. 7596.
{¶ 15} In Edmonson v. Edmonson (Nov. 29, 1996), Mont. App. 15813, this court upheld a trial court's refusal to modify a spousal support order wherein a husband agreed to pay his former spouse $1250 a month until she died or remarried. Judge Kerns noted in that court's opinion:
{¶ 16} "Here, the undisputed evidence discloses, among other things, that Ronald Edmonson harbored an abiding intention to retire before he made his spousal support agreement, and nothing appears in the evidence to suggest that Mrs. Edmonson or her husband agreed or anticipated that voluntary retirement would terminate or suspend her support payments prior to death or remarriage.
{¶ 17} "* * * *Page 762
{¶ 18} "As argued by the appellant, this court has held that a reduction in income due to voluntary retirement is literally a change of circumstances. Lewis v. Lewis (May 26, 1987), Clark App. No. 2264, unreported; Melhorn v. Melhorn (January 30, 1989), Montgomery App. No. 11139, unreported. But the court also recognized in those cases that retirement alone is not necessarily a change as between the parties which might justify the termination on suspension of support. And the record in the instant case, as a whole, under all of the circumstances, fails to reveal any semblance of an abuse of discretion. Accordingly, the third assignment of error is overruled."
{¶ 19} Dr. Reveal certainly knew that Lynn Reveal would be eligible to receive her retirement at age 59 ½ and yet he agreed to pay her alimony until her death or remarriage. He could have stipulated that the alimony was subject to reduction upon Lynn receiving retirement benefits, but he didn't. It is also not clear that Mrs. Reveal would have agreed to such a stipulation. We see no abuse of discretion present in the trial court's refusal to find that there was no substantial change of circumstances not contemplated by the parties. The rise in value of Mrs. Reveal's retirement account since 1987 was not remarkable either. The assignment of error is overruled.
{¶ 20} The judgment of the trial court is Affirmed.
YOUNG, J., concurs.