Bohme v. Bohme

2017 Ohio 1190

• Court: Ohio Court of Appeals
• Decided: March 31, 2017
• Docket: 27258
• Status: Published

Opinion

[Cite as Bohme v. Bohme, 2017-Ohio-1190.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

MICHELLE HANLEY BOHME : : Plaintiff-Appellant : C.A. CASE NO. 27258 : v. : T.C. NO. 2009-DR-01281 : RICHARD K. BOHME : (Civil Appeal from Common Pleas : Court, Domestic Relations) Defendant-Appellee : :

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OPINION

Rendered on the ___31st __ day of _____March_____, 2017.

DAVID M. McNAMEE, Atty. Reg. No. 0068582, 2625 Commons Blvd., Suite A, Beavercreek, Ohio 45431 Attorney for Plaintiff-Appellant

KEITH R. KEARNEY, Atty. Reg. No. 0003171 and AMY R. BLAIR, Atty. Reg. No. 0073760, 40 N. Main Street, Suite 2160, Dayton, Ohio 45423 Attorneys for Defendant-Appellee

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FROELICH, J.

{¶ 1} Michelle H. Bohme (now known as Michelle Hanley), appeals from a

judgment of the Montgomery County Court of Common Pleas, Domestic Relations

Division, which granted the motion of her former husband, Richard K. Bohme, to reduce

his monthly spousal support and child support obligations. For the following reasons, -2-

the judgment of the trial court will be affirmed.

I. Procedural History

{¶ 2} Hanley and Bohme were divorced in November 2013, after more than 20

years of marriage. They had two children, one of whom was still a minor at the time of

the divorce. Bohme was ordered to pay spousal support in the amount of $9,000 per

month for seven years, and to pay child support of $956 per month.

{¶ 3} In April 2014, while the parties’ direct appeal from the divorce decree was

pending, Bohme filed a request to modify his support orders based on a decrease in

income. Pursuant to an agreed order filed on January 26, 2015, the parties agreed that

Bohme would withdraw his request for modification, that he would temporarily pay a

reduced amount of spousal support (although the amount imposed in the divorce decree

would continue to accrue), and that, after the appeal was resolved, either party could seek

a modification of spousal support retroactive to the date of Bohme’s April 14, 2014 request

for a modification. We decided the appeal shortly thereafter. Bohme v. Bohme, 2d Dist.

Montgomery No. 26021, 2015-Ohio-339.

{¶ 4} On March 20, 2015, Bohme filed a motion to reduce his spousal support

and child support obligations, due to reduced income from his dental practice. On March

30, 2015, Hanley filed a motion to find Bohme in contempt for failure to pay support as

ordered in the decree. A magistrate held a hearing on both motions.

{¶ 5} On October 8, 2015, the magistrate found that Bohme’s income had

decreased substantially; accordingly, it reduced Bohme’s spousal support obligation to

$7,000 per month and reduced his child support obligation to $930 per month. The

reduction in spousal support was made effective May 1, 2014; the reduction in child -3-

support was effective April 1, 2015. Although Bohme was current on his child support

obligation at the time of the magistrate’s decision, he was $97,463.33 in arrears on his

spousal support obligation as of July 31, 2015; even with the retroactive modification of

spousal support, Bohme had an arrearage of over $60,000. The magistrate found

Bohme in contempt for failing to pay spousal support prior to the parties’ agreed entry,

sentenced him to ten days in jail, which was suspended on the condition that he pay

spousal support as ordered, and ordered Bohme to pay $200 per month toward the

arrearage, in addition to the new spousal support order of $7,000 per month. The

magistrate also ordered Bohme to pay $350 in attorney’s fees to Hanley for the contempt

action.

{¶ 6} Hanley filed objections to the magistrate’s decision. Specifically, she

objected to the magistrate’s finding that Bohme’s income had decreased and to its order

that the arrearage be repaid at a rate of only $200 per month. She noted that, at this

rate, it would take 30 years for Bohme to pay the arrearage. Bohme did not file any

objections.

{¶ 7} On August 11, 2016, the trial court ruled on Hanley’s objections and issued

its judgment. The trial court adopted the magistrate’s finding that Bohme’s income had

decreased and that he was therefore entitled to a reduction in his support payments; it

incorporated the new spousal support and child support amounts suggested by the

magistrate. However, the trial court ordered that Bohme repay the arrearage at a rate of

$1,500 per month. The court’s judgment also adopted the magistrate’s findings with

respect to Bohme’s contempt, his jail term (suspended on the condition that he pay his

support obligations), and his payment of attorney fees to Hanley. -4-

{¶ 8} Hanley raises one assignment of error on appeal, which challenges the trial

court’s determination of Bohme’s income.

II. Standard of Review

{¶ 9} A trial court has the authority to modify the amount of spousal support if the

court determines that “the circumstances of either party have changed,” and the decree

contains a provision authorizing the court to modify the amount or terms of spousal

support. R.C. 3105.18(E). A change of circumstances “includes, but is not limited to,

any increase or involuntary decrease in the party’s wages, salary, bonuses, living

expenses, or medical expenses, or other changed circumstances * * *.” R.C.

3105.18(F)(1). “The change must be one that is substantial and not contemplated at the

time of the prior order.” Tremaine v. Tremaine, 111 Ohio App.3d 703, 706, 676 N.E.2d

1249 (2d Dist.1996). “The burden of showing that a reduction of spousal support is

warranted is on the party who seeks the reduction.” Reveal v. Reveal, 154 Ohio App.3d

758, 2003-Ohio-5335, 798 N.E.2d 1132, ¶ 14 (2d Dist.).

{¶ 10} When a child support order is based on the child support guidelines set

forth in R.C. 3119.02, a modification must be based on a “substantial” change of

circumstances; a ten percent deviation from the existing order is considered “substantial.”

R.C. 3119.79(A). However, when the parties’ combined income exceeds $150,000,

child support must be determined in accordance with R.C. 3119.04, and the child support

guidelines set forth in R.C. 3119.02 do not apply except to “[set] a floor beneath which

support ordered under R.C. 3119.04(B) cannot fall.” Phelps v. Saffian, 8th Dist.

Cuyahoga No. 103549, 2016-Ohio-5514, ¶ 15, citing Siebert v. Tavarez, 8th Dist.

Cuyahoga No. 88310, 2007-Ohio-2643, ¶ 31. R.C. 3119.04(B) does not address what -5-

constitutes a substantial change of circumstances, but the needs of the child and the

standard of living he or she has enjoyed are relevant factors, as in the initial determination

of child support under R.C. 3119.04(B); the public policy interest reflected in the

“substantial” change test of R.C. 3119.79(A) and (C), which is intended to prevent endless

motions for modification based on incremental changes in income, is also relevant. Id.

at ¶ 18-20.

{¶ 11} Trial courts are granted broad discretion concerning awards of spousal

support and child support, and their orders will not be disturbed by an appellate court

absent an abuse of that discretion. Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450

N.E.2d 1140 (1983); Shannon v. Shannon, 2d Dist. Montgomery No. 26918, 2016-Ohio-

3089, ¶ 9; In re R.H., 2d Dist. Montgomery No. 26899, 2016-Ohio-6961, ¶ 29, citing

Snyder v. Snyder, 8th Dist. Cuyahoga No. 95421, 2011-Ohio-1372, ¶ 42. The term

“abuse of discretion” implies that the court’s decision is unreasonable, arbitrary or

unconscionable. Blakemore at 219.

III. Evidence Regarding Bohme’s Reduced Income

{¶ 12} Bohme presented evidence about his income from his dental practice for

2013, 2014, and the first half of 2015. The dental practice is his only source of income,

but part of his income is paid as wages and part as S-corporation income. Bohme’s

accountant testified about these numbers; he also presented Bohme’s tax returns and a

chart listing various types of income and expenses from 2011 through the first half of

2015.

{¶ 13} Based on this testimony and these documents, the trial court concluded that

Bohme’s income in 2013 was $454,949, and his income in 2014 was $369,040. -6-

Assuming that his income from the second half of 2015 was not substantially different

from the first half, his income for 2015 was “comparable” to 2014. The support payments

ordered at the time of the divorce were based on Bohme’s having income of $500,000

per year.

{¶ 14} Bohme testified that he had substantial debt on his practice from buying

out a partner in 2003; this debt existed at the time of the divorce. He had also recently

purchased his office building, but he testified that his monthly expense for the property

had remained the same. There was no other rental income from the property. Bohme

further testified that he was still paying off a debt on the marital home, which was

“underwater” when the parties sold it. Bohme did not explain why he thought his dental

practice was earning less income; he attributed his financial hardship to his debts. He

testified that he had not been able to contribute to his retirement, savings, or other

investments since the divorce, and stated that he had “a few hundred bucks” in a savings

account. Bohme stated that he had never been able to meet the spousal support and

child support obligations set forth in the divorce decree.

{¶ 15} Bohme testified that his monthly living expenses were approximately

$11,000 per month. Since his divorce, he had purchased an engagement ring for $6 -

$10,000, had a destination wedding, held a wedding reception at the NCR Country Club,

and purchased a motorcycle and a new home. Bohme testified that he saved some

money for the ring while he was separated and living with a friend, that he paid for the

wedding in Washington with frequent flyer miles, and that his parents paid for part of his

wedding reception. Bohme referred to payments on his loans as “mandatory payments”;

when asked if the support payments were not also “mandatory payments,” he stated “I -7-

pay whatever I can afford.”

{¶ 16} Hanley testified that she was imputed income of $17,000 in the divorce,

based on minimum wage. She testified that she had held one job since the divorce,

earning $10 per hour working 35-40 hours per week at a child care facility; she worked at

the child care center for approximately 11 months, but she was not working at the time of

the hearing due to a broken hand.

IV. The Trial Court’s Findings

{¶ 17} Based on this evidence, the trial court concluded that there had been a

change of circumstances since the award of spousal support and a “substantial reduction”

in Bohme’s income. The court noted that no expert testimony was offered to challenge

Bohme’s income calculations, the amount of his debt, “or the calculation of debt to

income.” The court estimated the total reduction in Bohme’s income in 2013, 2014 and

the first half of 2015 at more than 22% as compared with the amount used in the original

support calculations. Thus, the court concluded that a reduction of spousal support from

$9,000 per month to $7,000 was appropriate and “fairly reflects the decrease of [Bohme’s]

income.” The court made the spousal support modification effective May 1, 2014, in

accordance with the parties’ agreed entry that a motion for modification filed after the

appeal could be retroactive.

{¶ 18} However, the court found that Michelle’s objection to repayment of the

arrearage at the rate of $200 per month was well taken. The court ordered repayment

of the arrearage at a rate of $1,500 per month until the arrearage was satisfied, and it

specified that if the arrearage were not satisfied at the end of the term of spousal support,

repayment should continue at a rate of $8,500 per month until there was no money owed. -8-

{¶ 19} With respect to child support, the trial court found that there had been a

substantial reduction in Bohme’s income that was not contemplated at the time of the

issuance of the original support order. The trial court followed the magistrate’s decision

in reducing child support from $956 to $930 per month (with health insurance), effective

April 1, 2015.

{¶ 20} Bohme’s accountant testified about his reduced income from the dental

practice, and his testimony was uncontradicted, although no explanation for the

substantial reduction in the dental practice’s income was offered. The trial court

recognized that Bohme had substantial discretionary spending during the period in which

he claimed to be unable to meet his support obligations – e.g., buying a motorcycle,

buying an engagement ring, and having a destination wedding and a country club

wedding reception – but Bohme testified that he had saved for these items during the

parties’ separation or had been assisted by his parents. This testimony, if believed by

the trial court, mitigated Hanley’s suggestion that Bohme was prioritizing his new life over

his obligations under the divorce. Based on the evidence presented, the trial court did

not abuse its discretion in concluding that Bohme’s income had decreased substantially

from what it had been when his initial spousal and child support orders were calculated

and that the support payments should be reduced.

{¶ 21} The assignment of error is overruled.

V. Conclusion

{¶ 22} The judgment of the trial court will be affirmed.

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HALL, P.J. and TUCKER, J., concur.

Copies mailed to:

David M. McNamee Keith R. Kearney Amy R. Blair Hon. Timothy D. Wood