Abbott v. Abbott

2020 Ohio 5599

Opinion

[Cite as Abbott v. Abbott, 2020-Ohio-5599.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

DINISE A. ABBOTT : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : TERRY L. ABBOTT : Case No. CT2020-0016 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Domestic Relations Division Case No. DB 2017-0968

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: December 8, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROSE M. FOX JOHN H. COUSINS IV Fox Law Office Grossman Law Offices LLC 233 Main Street 32 W. Hoster Street, Suite 100 Zanesville, Ohio 43701 Columbus, Ohio 43215 Muskingum County, Case No. CT2020-0016 2

Baldwin, J.

{¶1} Defendant-appellant Terry L. Abbott appeals from the February 27, 2020

Judgment Entry of the Muskingum County Court of Common Pleas, Domestic Relations

Division.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant Terry L. Abbott and appellee Dinise A. Abbott were married on

August 22, 1990. On November 28, 2017, appellee filed a complaint for divorce against

appellant. Appellant filed an answer on December 6, 2017.

{¶3} A Decision and Judgment Entry was filed on August 31, 2018. The trial

court, in the same, found that appellant had worked numerous positions in the

construction pipeline field and had recently earned in the range of $71,000.00 to

$160,000.00 per year. The trial court further found that in 2017, appellant earned

$121,418.00 and that his projected net pay for 2018 was $109,974.00.

{¶4} Pursuant to a Divorce Decree filed on September 28, 2018, appellant was

ordered to pay spousal support to appellee in the amount of $1,000.00 per month until

the death of either party or cohabitation by appellee with an unrelated adult. The trial court

retained jurisdiction over spousal support.

{¶5} Thereafter, on August 23, 2019, appellant filed a Motion for Modification of

Spousal Support. Appellant, in his motion, argued that his gross annual wages had not

met the court’s expectations and that, effective August 7, 2019, he had a new employer

and no longer was receiving per diem or truck pay. Muskingum County, Case No. CT2020-0016 3

{¶6} A hearing on appellant’s motion was held on February 14, 20201. At the

hearing, appellant testified that he was living with his new wife and her daughter. When

asked if his income had changed since he was ordered, in September of 2018 to pay

spousal support in the amount of $1,000.00 a month, stated that it had changed

“drastically.” Transcript at 6. Appellant testified that he had been laid off from his pipeline

job the last week of July of 2019 and was unable to find other positions that were similarly

situated with respect to earnings. He testified that he went to work for Trucco

Construction.

{¶7} Appellant testified that his 2018 gross earnings from MG Dyess were

$34,300.00 as reflected on his W-2, but that at that time he also received per diem and

truck pay. Appellant testified that the total for all of the different places that he was

employed in 2018 was $118,136.60 but that his take home pay was only $70,000.00.

Appellant testified that, in 2019, his gross pay from ProGro Environmental was

$29,450.00 for pipeline work. He testified that he was forced into accepting a position at

Trucco Construction as an excavator and that he was presently employed there, but was

actively attempting to get back on the pipeline. He testified that he did not receive any

pay from December 22, 2019 through January 6, 2020 from Trucco and that he did not

receive any overtime pay and was not guaranteed 40 hours a week. When asked,

appellant testified that his current rate of pay at Trucco was $37.14 an hour.

{¶8} Appellant testified that he commuted approximately 70 miles to his job and

that he did not receive per diem or truck pay from Trucco. All of his expenses traveling to

and from the job was an expense to him. He testified that on average, he spent $190.00

1While numerous exhibits were introduced at the hearing, when a Staff Attorney called to have the same sent to this Court, she was advised that they had been destroyed . Muskingum County, Case No. CT2020-0016 4

a month on vehicle maintenance, $547.44 on his vehicle loan, $73.67 for insurance, and

around $800.00 a month for fuel. Appellant testified that he let repairs go because he

was unable to afford them, but that he had repairs totaling $3,991.80 done on the truck

between March of 2018 and September of 2019.

{¶9} Appellant testified that he had maxed out his credit cards because he did

not have any money in his monthly budget for these expenses. According to him, at the

time of the divorce, his cards were not maxed out and they were not behind on payments.

He testified that he was going into debt to pay the bills. He testified that since his divorce,

he had not saved funds for retirement. Appellant was 51 years old at the time of the

hearing. He had no retirement available through Trucco, and was not vested in his union.

{¶10} Appellant testified that his wife was employed and earned around

$32,000.00 a year and assisted with household expenses. He testified that he broke a

bone in his foot, but delayed surgery because of the costs associated with not working

for at least three weeks to recover.

{¶11} Appellant testified that in January of 2019, his gross income was $10,376.00

and in 2020, it was $4,178.25 and that in January of 2019, his net income was $9,168.42

and in 2020, it was $3,118.84. He asked the trial court to terminate his spousal support

obligation so that he could ger back on his feet. He testified that he was not earning

enough to support a $1,000.00 a month withdrawal from his paycheck for spousal

support.

{¶12} Appellant also testified that he took out a home equity line of credit through

Huntington Bank in September of 2019 because he “needed something to fall back on to

pay bills to make it through the winter and be able to survive. “ Transcript at 31. He never Muskingum County, Case No. CT2020-0016 5

had a line of credit during his marriage to appellee. He used the line of credit to meet his

monthly obligations. He testified that the current balance on his line of credit was listed

as $13,964.42, but that he thought it was actually down to around $10,000.00 by the time

of the trial. Appellant also testified that, in September of 2019 and October of 2019, he

was operating at a net monthly deficit. In September the deficit was $2,447.17 and in

October it was an excess of $2,000.00.

{¶13} On cross-examination, appellant testified that he took a weekend trip to

Tennessee in October and that his wife paid for the lodging. He testified that he did not

use his truck to do his work but used it as transportation to work. He testified that between

August and December of 2019, he grossed $26,385.00 and part of the money was from

overtime. According to appellant, there had since been a ban on overtime. Appellant

testified that when he was working on the pipeline, the per diem was for living expenses

since he had to live on the road and that he was not living on the road at the time of the

trial so did not have to pay for a hotel or housing away from work.

{¶14} He testified that the home equity line was taken out in August or October of

the last year and that he was behind $4,000.00 in spousal support and that he was behind

on spousal support when the divorce was finalized.

{¶15} Appellee testified that she lived at her parents’ property and that, at the time

of the divorce, was not employed and it was not anticipated that she was going to become

employed. She testified that she had been employed as a housekeeper at Genesis

Hospital since January of 2018. She testified that her wages for 2018 were $18,502.00

and that, other than her wages, she had income of $19,479.00 for 2018. Her rate of pay

was $10.96 an hour and she worked 40 hours a week. Appellee testified that she did not Muskingum County, Case No. CT2020-0016 6

have any other sources of income and lived alone. She asked that spousal support remain

the same because she had nothing left after paying her bills. Appellee testified that her

electric budget was around “two something” every month and that she split the bill for

property taxes with her father and brother. Transcript at 56. Appellee did not pay any rent.

The full year for property taxes was $608.24. She testified that she was paying monthly

on a credit card from T.J. Maxx and had a balance on her credit card to Lowe’s in the

amount of $929.69 after purchasing a washer and dryer. She also had a Kohl’s credit

card that she was paying on.

{¶16} Appellee testified that she paid $89.33 a month for car insurance. She

testified that she had on ongoing bill with Genesis Healthcare for treatment for bladder

cancer. She had health insurance through her employer and had a plan to pay Genesis

$26.50 a month. Her balance was around $923.00. Appellee testified that she was still

undergoing treatment for bladder cancer. She testified that there was a Genesis bill that

appellant was to pay as part of the divorce and that he had not paid the same and it was

added to her bill. Appellee pays $16.30 a month for life insurance, $42.50 a month for

trailer insurance, and approximately $76.00 for trash pickup. She pays $60.00 a month

for phone and between $200.00 and $300.00 a month for groceries.

{¶17} Appellee testified that she purchased a 2016 Ford Escape in August of 2019

because her other vehicle kept breaking down and that she paid $354.76 a month for the

car. She testified that her home was in poor condition and needed roof repairs but that

she could not afford repairs. She testified that her only retirement was a 403(b) through

her current employer and social security. She testified that she could not afford her

monthly expenses without the spousal support award. Appellee testified that she had to Muskingum County, Case No. CT2020-0016 7

buy uniforms for work and was not reimbursed for them and that she spent around $30.00

a week on gasoline. She testified that in April of 2019 she got a 30 cent an hour raise and

that they usually got a yearly raise. Appellee tested that she had gross pay of $883.20

and net pay of $633.29 every two weeks.

{¶18} On cross-examination, appellee testified that she grossed around

$20,000.00 from Genesis according to her 2019 W-2. She testified that her 2019 W-2

reflected a couple of thousand dollars more than her 2018 W-2. Appellee testified that

she was contributing $58.14 a month to her 403(b). At the time of the divorce, the balance

on her TJ Maxx card was $5,242.51 but the Lowe’s account was a new account since

the divorce. She further testified that the balance owed on her Kohl’s account was around

$900.00 with a $27.00 a month minimum payment.

{¶19} Appellee testified that her monthly expenses were approximately $1,500.00

and her net take home pay was approximately $1,300.00. Appellee, at the time of the

divorce, was spending approximately $500.00 a month on cigarettes and admitted that

that would have been included as part of her budget. She testified that she spent two or

three hundred dollars a month on cigarettes and alcohol, but was unsure of the amount

except to testify that it was probably less than the $500.00 she disclosed at the time of

the divorce. Appellee testified that she was getting around a $1,200.00 tax refund.

{¶20} Appellee testified that when she was married to appellant, they did not take

vacations but that since the divorce, she had gone camping and had traveled to the Outer

Banks and Put-In-Bay. Appellee testified that she only had to pay for her food and drink.

She testified that she did not have to take out any personal loans to make her monthly

expenses and that the trailer she lived in was the trailer that she lived in during her Muskingum County, Case No. CT2020-0016 8

marriage. There was no line of credit attached to her home and appellee was not maxed

out on her credit cards. She testified that the vehicle that she purchased was used.

Appellee testified that the expenses that she had for smoking was known by the court at

the time of the divorce, but that spousal support was awarded anyway.

{¶21} The trial court, as memorialized in Judgment Entry filed on February 27,

2010, denied appellant’s Motion to Modify. The trial court found that while there had been

a change in appellant’s income, “the original spousal support award remains reasonable

and appropriate…”

{¶22} Appellant now appeals, raising the following assignments error on appeal:

{¶23} “I. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND RULED

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN DENYING APPELLANT’S

MOTION TO MODIFY SPOUSAL SUPPORT.”

{¶24} “II. ALTERNATIVELY, THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION WHEN IT MISCALCULATED APPELLANT’S ANNUALIZED INCOME

FROM HIS NEW EMPLOYMENT.”

II

{¶25} Appellant, in his second assignment of error, argues that the trial court erred

and abused its discretion when it miscalculated appellant’s annualized income from his

new employment. We agree.

{¶26} A trial court's decision to modify spousal support will not be reversed absent

an abuse of discretion. Brzozowski v. Brzozowski, 8th Dist. Cuyahoga No. 101013, 2014-

Ohio-4820, ¶ 20. In order to find an abuse of discretion, we must determine that the trial Muskingum County, Case No. CT2020-0016 9

court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Dist.1996).

{¶27} In the case sub judice, trial court found that, while there had been a change

in appellant’s income, the original spousal support remained reasonable and appropriate

and denied appellant’s motion to modify the same.

{¶28} With respect to appellant, the trial court found that, at the time of the divorce,

appellant had a work history including numerous positions in the construction pipeline

field earning $71,000.00 to $161,000.00 annually. The trial court found that, in 2017,

appellant earned $121,418.00 and, in 2018, he was projected to earn approximately

$110,000.00. The trial court further found that after the divorce, appellant was laid off from

his position with the pipeline company and was unable to find equivalent employment. At

the time of the hearing, appellant was earning $37.14 an hour or $77,251.00 annually

based on a forty hour work week. The trial court found that although overtime was not

currently available to appellant, it would likely be available again in the future.

{¶29} The trial court further found that for the period of August 6, 2019 through

December 6, 2019, appellant grossed the sum of $26,385.00 which it annualized to

$105,540.00. The trial court stated, in relevant part, as follows: “The Court finds

Defendant cannot be certain with regard to his income with Trucco Construction. As is

stated above, at a straight forty hour week he would earn $77,251.00. Based upon his

history with Trucco Construction for the last four months of 2019 he would earn

$105,540.00. The Court finds that actual earnings of 2019 represents a reasonable

expectation of Defendant for 2020 and in the future and finds that to be $88,9070.00.

(sic)” Muskingum County, Case No. CT2020-0016 10

{¶30} However, the period from August 6, 2019 through December 6, 2019 is a

four month period. Thus, the trial court erred when it multiplied $26,385.00 by four in

arriving at an annualized income of $105.540.00 for appellant. The trial court should have

multiplied the $26,385.00 by three and arrived at a figure of $79,155.00. We believe this

mathematical miscalculation is of sufficient size to merit reversal of the trial court's

decision. Nevertheless, we find fundamental fairness mandates a reversal and remand

to the trial court to reconsider appellant’s motion using the corrected annualized income

figure for appellant. It is clear that the trial court relied on the $105,540.00 figure in

determining appellant’s earning capacity in this case.

{¶31} Appellant’s second assignment of error is, therefore sustained. Based on

our disposition of appellant’s second assignment of error, appellant’s first assignment of

error is premature. Muskingum County, Case No. CT2020-0016 11

{¶32} Accordingly, the judgment of the Muskingum County Court of Common

Pleas, Domestic Relations Division, is reversed and this matter is remanded for further

proceedings consistent with this Opinion.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.