Boron v. Boron

2019 Ohio 714

• Court: Ohio Court of Appeals
• Decided: February 26, 2019
• Docket: 2018CA00080
• Status: Published

Opinion

[Cite as Boron v. Boron, 2019-Ohio-714.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: JULIA BORON : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2018CA00080 JOHN BORON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2014DR00157

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 26, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RAYMOND BULES PAUL HERVEY Mills, Mills, Fiely & Lucas Day, Ketterer, LTD 101 Central Plaza South 200 Market Ave.North, Ste. 300 200 Chase Tower Canton, OH 44702 Canton, OH 44702 [Cite as Boron v. Boron, 2019-Ohio-714.]

Gwin, P.J.

{¶1} Appellant appeals the May 30, 2018 judgment entry of the Stark County

Common Pleas Court, Domestic Relations Division, adopting and approving the

magistrate’s decision denying his motion for modification or termination of spousal

support and motion for termination of child support.

Facts & Procedural History

{¶2} In 2014, Husband John Boron and Wife Julia Boron dissolved their marriage

with a separation agreement and agreed shared parenting plan. The parties agreed

Husband would pay Wife $400 per month in child support.

{¶3} The separation agreement provides as follows regarding spousal support:

“Husband shall pay to the Wife, as and for Spousal Support, the sum of $1250.00 per

month for a period of ninety-six months subject to earlier termination upon the death of

either party, the Wife’s remarriage or co-habitation with an unrelated adult. The Court

shall retain jurisdiction over the amount of spousal support but not the duration.”

{¶4} On March 19, 2014, the trial court granted the parties’ dissolution and

approved and adopted both the separation agreement and the shared parenting plan.

{¶5} On November 15, 2017, Husband filed a motion to terminate or modify

spousal support and child support. Wife filed a response in opposition to Husband’s

motion on November 28, 2017.

{¶6} The trial court held a hearing on Husband’s motion on February 21, 2018

and April 11, 2018. Jeffrey Merriman (“Merriman”) is the executive vice-president at GBS

Corporation (“GBS”), Husband’s previous employer. Merriman was previously the vice-

president of sales and operations at GBS and was Husband’s manager. Merriman Stark County, Case No. 2018CA00080 3

testified Husband did not meet his sales quotas for the last three to four years he was

employed at GBS. Merriman stated he sent Husband a letter on April 6, 2015, placing

him on probation. Merriman testified this letter meant that Husband had to sell more

business or else the company would take steps to terminate him at the end of 2015.

Merriman stated this was clearly relayed to Husband and Husband understood he needed

to make changes and improve substantially to stay at GBS long-term. Merriman testified

that one month after he sent Husband the letter, Husband resigned and it was Husband’s

decision to resign.

{¶7} On cross-examination, Merriman testified Husband had the opportunity to

do whatever he could to achieve better results and GBS supported and assisted

Husband’s efforts to obtain sales when he needed it.

{¶8} Husband stated one of his major accounts at GBS had gone bankrupt and

GBS was going to take a share of those production costs from Husband’s commission

checks. Husband testified he knew if he didn’t produce very soon, he would be out the

door, but he didn’t want to leave. However, Husband thought he would be fired if he did

not resign.

{¶9} Husband stated he waited thirty months to file his motion to modify spousal

support because he fully intended to go back to work. Husband did not find many sales

opportunities that he believed were viable because he did not want a job where he would

receive a straight commission and no insurance benefits. Husband worked at Copeco

for eight months. He was given the impression if he didn’t produce at certain numbers,

he would be gone. Husband now works at the deli counter at Acme. Husband testified

he is not financially able to continue paying spousal and child support on his current Stark County, Case No. 2018CA00080 4

salary. Husband earns $8.75 per hour and works between 28 and 32 hours per week at

Acme.

{¶10} On cross-examination, Husband testified he voluntarily resigned from GBS.

Husband stated his production at GBS had already started to decrease before the

dissolution. Husband believes the sales goals set for him by GBS were reasonable.

Husband testified he made the determination to quit GBS when his opinion was he would

not make the same amount of money anywhere else. Husband stated he was

unemployed for twenty-two months before accepting the job at Copeco. During that

twenty-two months, Husband walked his dog, worked out, and traveled. In Husband’s last

full year at GBS, he made $97,264.28. Husband filed an unemployment claim against

GBS that was denied. Husband voluntarily quit at Copeco because he did not like selling

copiers. Husband testified since he quit GBS he withdrew $300,000 from his retirement

account and did this instead of obtaining a full-time job because he decided to take a

break, enjoy life, gather his thoughts, and move on.

{¶11} Wife testified she opposes any reduction in the support obligation because

she planned to use the money to help with college payment for the parties’ son. Wife

stated she has worked full-time since the dissolution of the marriage. Wife testified that

she rolled her half of Husband’s interest in GBS’s employee stock ownership plan into an

IRA that she has not touched since the dissolution.

{¶12} The magistrate issued an order on April 18, 2018. In his findings of fact, the

magistrate found as follows: at the time of the dissolution, Husband was working for GBS,

had been working there for approximately thirty-five (35) years, and was making

$105,176.78; Wife was making $51,910.33 at the time of the dissolution; on May 8, 2015, Stark County, Case No. 2018CA00080 5

Husband voluntarily resigned from his job; Husband testified he was about to be

terminated, so he resigned; Husband did not work for the following 21 months because

he decided to “take a break, enjoy life, and gather his thoughts”; Husband eventually took

a job working for Copeco as a salesman and voluntarily left this job; Husband now works

at the deli counter at Acme making $8.75 per hour and works 28-30 hours per week;

Husband is content at this job and does not appear to be looking for anything else;

Husband claims that due to his current financial situation, he can no longer afford to pay

the current spousal and child support obligations; Wife has been employed full time

throughout and recently took a different job that will give her better hours and potential

for increased income, along with health insurance for her and the minor child; Husband

is required under the shared parenting plan to carry health insurance on the minor child

but he fails to do so; Wife made $48,714 in 2017; Husband made $24,623.03 in 2017;

Husband is voluntarily under-employed and income of $97,264.28 is imputed, as this is

the amount Husband made in his final year at GBS.

{¶13} In the conclusions of law and decision portion of the magistrate’s order, the

magistrate stated modification of spousal support is governed by R.C. 3105.18(F) and

modification of child support is governed by R.C. 3119.79. The magistrate stated

Husband failed to show Wife was co-habitating with her paramour. The magistrate found

Husband is voluntarily under-employed and is capable of earning an income more in line

with the income he was making at the time of the divorce. The magistrate found that no

modification/termination of spousal support is warranted at this time. The magistrate

imputed $97,264.28 of income to Husband and found Husband has not demonstrated the Stark County, Case No. 2018CA00080 6

required deviations in incomes for a recalculation of child support. Accordingly, the

magistrate denied Husband’s motion to modify spousal support and child support.

{¶14} Husband filed objections to the magistrate’s decision on April 27, 2018.

Wife filed a response to Husband’s objections on May 29, 2018.

{¶15} On May 30, 2018, the trial court overruled Husband’s objections and

approved and adopted the magistrate’s decision. The trial court set the matter for an

evidentiary hearing on attorney fees.

{¶16} Appellant appeals the May 30, 2018 judgment entry of the Stark County

Court of Common Pleas, Domestic Relations Division, and assigns the following as error:

{¶17} “I. THE TRIAL COURT ERRED IN APPLYING THE WRONG LEGAL

STANDARD TO A REVIEW OF SPOUSAL SUPPORT OBLIGATIONS.

{¶18} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT

THERE WAS NOT AN INVOLUNTARY DECREASE IN APPELLANT’S INCOME.

{¶19} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FAILING TO REVIEW AND TERMINATE THE CHILD SUPPORT OBLIGATION.”

I.

{¶20} In his first assignment of error, Husband contends the trial court erred in

applying the wrong legal standard to a review of spousal support obligations because the

trial court focused on “voluntarily underemployment” and should have looked at whether

there was an “involuntary decrease” in Husband’s income and whether there was a

substantial change of circumstances. We disagree.

{¶21} In this case, the trial court, it its conclusions of law section, specifically

stated that R.C. 3108.18(F) governs the modification of spousal support and included in Stark County, Case No. 2018CA00080 7

its entry the text of that code section. It is clear from the findings of the magistrate that

no modification of spousal support was warranted due to Husband’s voluntary under-

employment and capability to earn income in line with what he was making at the time of

the dissolution that the magistrate found Husband failed to demonstrate a substantial

change in circumstances because the decrease in income was voluntary.

{¶22} Similar to this case, in Bittner v. Bittner, the trial court found the appellant left

his job voluntarily, with knowledge of his spousal support obligations, and thus there was

no change of circumstances as outlined in R.C. 3105.18. 5th Dist. Delaware No. 16 CAF

10 0043, 2017-Ohio-7498. We held that the trial court did not abuse its discretion in

finding no substantial change of circumstances because any such change of

circumstance was voluntary and foreseeable and a change in circumstance may not be

purposely brought about by the complaining party. In this case, similar to the Bittner case,

the trial court noted Husband’s testimony that he voluntarily resigned from his job when

he felt he was going to be terminated and noted Husband’s testimony that he did not work

for the following 21 months because he decided to take a break, enjoy life, and gather his

thoughts.

{¶23} Husband further argues if the trial court had reviewed the statutory factors

contained in R.C. 3105.18, the trial court would have concluded a reduction of spousal

support was in order. However, the trial court must consider the statutory factors listed

in R.C. 3105.18(C) once a change of circumstances is found. Here, the trial court did not

find a change in circumstances and thus no analysis of the statutory factors of R.C.

3105.18(C) is required. Stark County, Case No. 2018CA00080 8

{¶24} We find the trial court did not err in applying the wrong legal standard.

Husband’s first assignment of error is overruled.

II.

{¶25} In his second assignment of error, Husband alleges the trial court’s decision

not to modify or terminate his spousal support obligation was an abuse of discretion and

not supported by the evidence.

{¶26} Decisions regarding the modification of spousal support are reviewable

under an abuse of discretion standard. Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d

1028 (1989). In order to find an abuse of discretion, we must determine the trial court’s

decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983). The burden of establishing the need for

modification of spousal support rests with the party seeking modification. Weddington v.

Weddington, 5th Dist. Licking No. 10CA00023, 2010-Ohio-4967.

{¶27} R.C. 3105.18(E) provides the court does not have jurisdiction to modify the

amount of spousal support unless the court “determines that the circumstances of either

party have changed.” R.C. 3105.18(F) provides a change of circumstances, “includes,

but is not limited to, any increase or involuntarily decrease in the party’s wages, salary,

bonuses, living expenses, or medical expenses, or other changed circumstances.” In

order to constitute a basis for modifying spousal support, the change of circumstances

must be material, not purposely brought about by the moving party, and not contemplated

at the time the parties entered into the prior agreement. Waters v. Boney, 5th Dist. Stark

No. 2008-CA-00127, 2009-Ohio-574; Weddington v. Weddington, 5th Dist. Licking No.

10CA00023, 2010-Ohio-4967. Stark County, Case No. 2018CA00080 9

{¶28} As an appellate court, we are not fact-finders; we neither weigh the

evidence nor judge the credibility of the witnesses. Our role is to determine whether there

is relevant, competent, and credible evidence upon which the fact finder could base its

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911.

{¶29} Husband specifically argues he did nothing “wrong” to get fired. There is

nothing in the trial court’s findings of fact and conclusions of law that indicate Husband

did anything “wrong,” or that he was fired. Rather, the trial court found Husband

voluntarily resigned from his job, took a twenty-one month break to enjoy life and gather

his thoughts, and is capable of earning an income more in line with what he was making

at the time of the divorce. Thus, the trial court found Husband was under-employed and

imputed $97,264.28 of income to him. We find the trial court’s determination is supported

by competent and credible evidence.

{¶30} Merriman testified Husband did not meet his sales quota for several years

and was placed on probation in April of 2015. Merriman stated this meant he had to sell

more business or else the company would take steps to terminate him at the end of 2015.

Merriman testified Husband understood he needed to make changes and improve and

that Husband had the opportunity to do whatever he could to achieve better results and

GBS assisted him in his efforts to obtain sales. Merriman stated Husband voluntarily

resigned from his job one month after receiving the letter placing him on probation.

{¶31} Husband acknowledged his production at GBS started going downhill in

2012. Husband agreed that he voluntarily resigned from GBS and that the sales goals

set for him by GBS were reasonable. Husband testified he made the determination to

quit GBS when his opinion was that he would not make the same amount of money Stark County, Case No. 2018CA00080 10

elsewhere. Husband was unemployed for twenty-two months, during which time he

walked the dog, worked out, and traveled. He also took a break, enjoyed his life, and

gathered his thoughts. Husband acknowledged that in 2014, his last full year at GBS, his

gross income was $97,264.28. Husband testified he now is employed at Acme earning

$8.75 per hour and working 28 to 32 hours per week. When asked about obtaining other

sales jobs, Husband testified he did not want a job with straight commission and no health

insurance.

{¶32} Husband also argues the uncontroverted evidence at trial shows he quit his

job before he was fired and had to go several months without pay. We disagree that the

evidence is uncontroverted. Rather, Merriman testified Husband was placed on probation

in April of 2015, which meant Husband had to sell more business or else the company

would take steps to terminate him at the end of 2015. Merriman stated Husband

understood that he needed to make changes and improve substantially. Merriman

testified Husband had the opportunity to do whatever he could to achieve better results

and GBS supported and assisted Husband’s efforts to obtain sales. While Husband

testified he resigned to avoid being fired, the testimony of Merriman demonstrates

Husband had at least eight months increase his productivity by the end of 2015. Instead,

Husband voluntarily resigned on May 8, 2015. The trial court is vested with the authority

to assess the credibility of the witnesses and is free to believe all, some, or none of

Husband’s testimony. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).

Additionally, the trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). Stark County, Case No. 2018CA00080 11

{¶33} In this case, the trial court did not abuse its discretion in finding no substantial

change in circumstances because the decrease in Husband’s income was voluntary and

was brought about by him. Husband’s second assignment of error is overruled.

III.

{¶34} In his third assignment of error, appellant argues the trial court erred and

abused its discretion in failing to review and terminate the child support obligation.

Husband again contends the trial court erred in finding him voluntarily under-employed

and erred in imputing income to him. Based upon our analysis in Husband’s second

assignment of error, we find there is competent and credible evidence to support the trial

court’s decision.

{¶35} We additionally note that, as of June 3, 2018, Husband is no longer paying

child support. Both Husband and Wife were provided a Notice of Child Support

Termination Investigation conducted by CSEA that found child support should terminate

on June 3, 2018. The trial court adopted and approved the CSEA’s recommendations on

July 2, 2018. Husband’s third assignment of error is overruled.

{¶36} Based on the foregoing, Husband’s assignments of error are overruled. Stark County, Case No. 2018CA00080 12

{¶37} The May 30, 2018 judgment entry of the Stark County Common Pleas

Court, Domestic Relations Division, adopting and approving the magistrate’s decision

denying his motion for modification or termination of spousal support and motion for

termination of child support, is affirmed.

By Gwin, P.J,

Wise, John, J., and

Wise, Earle E., J., concur