Clack v. Clack

2024 Ohio 1807

• Court: Ohio Court of Appeals
• Decided: May 10, 2024
• Docket: 2023-CA-27
• Status: Published

Opinion

[Cite as Clack v. Clack, 2024-Ohio-1807.]

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

CATHERINE A. (CLACK) EAST : : Appellee : C.A. No. 2023-CA-27 : v. : Trial Court Case No. 17-DIV-00358 : RICHARD A. CLACK JR. : (Appeal from Common Pleas Court- : Domestic Relations) Appellant : :

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OPINION

Rendered on May 10, 2024

JAY M. LOPEZ, Attorney for Appellant

SCOTT D. RUDNICK, Attorney for Appellee

.............

LEWIS, J.

{¶ 1} Defendant-Appellant Richard A. Clack, Jr. appeals from a judgment of the

Darke County Court of Common Pleas, Domestic Relations Division, that found him in

contempt of court and denied his motion to terminate or reduce his spousal support

obligation. For the following reasons, we will affirm the trial court’s judgment to the extent -2-

it found Richard in contempt, reverse its judgment with respect to the spousal support

obligation, and remand the cause for further proceedings consistent with this opinion.

I. Facts and Course of Proceedings

{¶ 2} On December 24, 1977, Richard and Plaintiff-Appellee Catherine A. (Clack)

East were married. On August 2, 2017, Catherine filed a complaint for divorce. 1

Richard filed an answer and counterclaim. On June 20, 2018, the trial court issued a

final decree of divorce. Pursuant to the divorce decree, Richard was ordered to pay

$2,500 per month in spousal support for 162 months. The trial court retained jurisdiction

regarding the issue of spousal support “both as to amount and duration.”

{¶ 3} On October 22, 2018, Richard filed a motion to reduce his spousal support

obligation due to involuntary unemployment. On February 5, 2019, an agreed order was

filed reducing his spousal support obligation to $1,750 per month.

{¶ 4} On February 7, 2022, Richard filed a motion to terminate or reduce his

spousal support obligation. Richard explained that he was in failing health and had been

on short-term disability since November 2021 due to his health issues. An August 5,

2022 agreed order reduced Richard’s spousal support obligation to $750 per month,

effective February 7, 2022, until he returned to work or until July 25, 2022, whichever

event occurred first, at which time spousal support would return to $1,750 per month.

{¶ 5} On November 7, 2022, Richard again filed a motion to terminate or reduce

his spousal support obligation, asking that the reduction or termination be made

1 For purposes of clarity and convenience, we will refer to the parties by their first names. -3-

retroactive to July 25, 2022. Richard explained that his short-term disability payments

terminated on July 14, 2022, due to an error in submission by his physician’s office. He

also noted that he had applied for Social Security disability benefits in August 2022 and

was waiting for a decision. Catherine subsequently filed a motion to find Richard in

contempt for failure to abide by the terms of the August 5, 2022 agreed order.

{¶ 6} On September 6, 2023, a hearing was held on the parties’ pending motions.

Richard testified first at the hearing. Tr. 6-74. He was 62 years old at the time of the

hearing. Richard had worked for Van Leer and Greif Packaging for 27 years until 2018,

when he lost his job. At the time of his divorce from Catherine, he was earning

approximately $104,000 at Greif Packaging. He began working for a company called

Mubea in October 2018. He made $32 per hour there as an electronics technician.

Around that same time, Richard’s health began declining.

{¶ 7} After working for Mubea for about one year, Richard began suffering from

heart problems. Eventually, he began receiving short term disability equaling about 60%

of his Mubea wages. He received short term disability benefits until June 2022. Richard

then applied for Social Security disability benefits. He received a letter in January 2023

informing him that his application for Social Security benefits had been approved. As a

result, Richard was sent a lump sum payment of over $25,000, which represented

benefits from July 2022 to January 2023. After his attorney’s share was deducted,

Richard received $19,355.25. Richard did not use any of this $19,355.25 to pay any of

the spousal support arrearage that had accrued. As of January 2023, Richard received

monthly Social Security disability benefits in the amount of $3,087.80. Richard -4-

presented no evidence at the hearing to dispute that he then owed $37,582 in spousal

support arrearage.

{¶ 8} Richard was no longer able to work due to his heart condition, knee

problems, and depression and did not expect any employment income in the future.

According to Richard, his heart problems made a heart attack inevitable. He decided to

file a motion to terminate his spousal support obligation after he had a mental breakdown

and stopped receiving short term disability benefits.

{¶ 9} Richard’s total monthly expenses were $2,974 at the time of the hearing,

while his monthly income was the $3,087.80 in Social Security disability benefits. His

monthly expenses included $864 for a 2015 Chevy Impala Richard previously had

cashed out the money from his 401k retirement account and spent it on living expenses.

He had not begun drawing on his pension from Greif Packaging and had not seriously

considered doing so. Richard was uncertain whether he could start withdrawing from his

pension at the time of the hearing but did not plan to do so until he was 70 years old.

{¶ 10} Richard testified he had approximately $3,000 in his 401k with Mubea,

$500-$1,000 in savings, and $600 in checking. Richard filed for Chapter 7 bankruptcy

in 2020 or 2021, which allowed him to discharge credit card debt. He did not have any

medical bills discharged.

{¶ 11} Catherine also testified at the hearing. Tr. 75-105. She was 62 years old

at the time. Catherine had been receiving Social Security disability income since 2013

or 2014. She needed two knee replacements and had asthma, anxiety, depression,

bulging discs, and levoscoliosis. Her sole monthly income was from Social Security, -5-

which totaled $1,398.60 after taxes. Her monthly expenses totaled $3,145. Catherine

used a credit card to make up the difference between her income and expenses.

Catherine also had approximately $80,000 left from her share of Richard’s 401k. She

used money from the 401k to pay off her credit cards. She had withdrawn $11,000 at

that time from her share of the 401k to pay her bills. Catherine was eligible to receive

monthly payments from Richard’s pension, but she had chosen to wait until she was 65

to start drawing on his pension. That decision should result in a benefit of $40,000 to

her. If she chose to take his pension benefits immediately rather than at age 65, she

would receive about $400 monthly.

{¶ 12} Although Catherine did not contest that Richard was disabled, she testified

that she needed the $1,750 monthly spousal support to make up the difference between

her income and expenses. Catherine could not afford the knee replacements that she

needed. She received only $939.85 total in spousal support in 2023. Richard’s spousal

support payments stopped in March 2023. She believed Richard could withdraw from

his pension if he made the election to do so. Catherine did not know how much Richard’s

monthly pension payment would be if he elected to take benefits immediately.

{¶ 13} On October 18, 2023, the trial court issued its decision on the pending

motions. The court found that both parties had diminished incomes, diminished earning

capacities, and health issues. Despite this, the court found that the earlier order setting

Richard’s spousal support obligation at $1,750 per month was “appropriate at this time.”

The trial court then stated:

However, [Richard] has done very little to help himself. On February -6-

7, 2022 [Richard] filed a Motion to terminate or reduce his support

obligation. He was receiving short term disability and did not pay anything

towards spousal support arrearage or current spousal support.

[Richard] did return to work in January 2022 and a portion was

withheld for spousal support but less than the $1,750.00 obligation. He

then left employment and started receiving short term income and did not

pay anything towards his spousal support obligation or arrearage.

In January of 2023 [Richard] received a gross sum of $25,000 in

disability but failed to pay any portion of it towards his spousal support

obligation or arrearage.

Decision (Oct. 18, 2023), p. 1-2.

{¶ 14} The trial court found Richard in contempt for “failing to pay his spousal

support obligation and arrearage on an ongoing basis.” Richard was ordered to serve

10 days in the county jail and pay a fine of $250 for his contempt. The court stated that

the jail time and fine would be suspended if Richard did the following by May 1, 2024:

(1) immediately apply for any and all pensions or benefits of any kind in order to pay his

financial obligations of spousal support and arrearage; (2) gain some employment to pay

his obligations; and (3) immediately pay at least $200 per month toward his spousal

support and $200 toward his spousal support arrearage “until his pension kicks in and/or

he obtains employment whereby he will pay the full amount.” The trial court also

“suggested that [Catherine] apply for her pension benefits under [Richard’s] pension.”

{¶ 15} Richard filed a timely notice of appeal from the trial court’s judgment. -7-

II. The Trial Court Abused Its Discretion by Not Reviewing the Relevant Evidence

to Determine the Appropriate Amount of Spousal Support

{¶ 16} Richard raises the following two assignments of error:

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

DEFENDANT-APPELLANT’S MOTION TO REDUCE OR TERMINATE

SPOUSAL SUPPORT RETROACTIVE TO JULY 25, 2022, AS IT IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND

CONTRARY TO THE LAW.

THE TRIAL COURT ERRED IN DENYING DEFENDANT-

APPELLANT’S MOTION TO REDUCE OR TERMINATE SPOUSAL

SUPPORT RETROACTIVE TO JULY 25, 2022, WHEN IT FAILED TO

CONSIDER ALL INCOME SOURCES OF THE PARTIES IN REVIEWING

THE SPOUSAL SUPPORT OBLIGATIONS.

{¶ 17} As noted above, the trial court’s October 18, 2023 judgment (1) found

Richard in contempt for failing to pay his ongoing spousal support obligation and

arrearage and (2) overruled Richard’s motion to modify or terminate his spousal support

obligation. Richard does not raise any assignment of errors challenging the trial court’s

contempt finding. Therefore, we will limit our analysis in this appeal to Richard’s

arguments that the trial court should have granted his motion to modify or terminate his

monthly spousal support obligation.

{¶ 18} The domestic relations court has jurisdiction to modify the amount or terms -8-

of spousal support if the divorce decree contains a provision specifically authorizing the

court to modify the amount or terms of the spousal support and the court determines that

the circumstances of either party have changed. R.C. 3105.18(E)(1). Further, R.C.

3105.18(F) provides, in part:

(1) For purposes of divisions (D) and (E) of this section and subject

to division (F)(2) of this section, a change in the 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, or

other changed circumstances so long as both of the following apply:

(a) The change in circumstances is substantial and makes the

existing award no longer reasonable and appropriate.

(b) The change in circumstances was not taken into account by the

parties or the court as a basis for the existing award when it was established

or last modified, whether or not the change in circumstances was

foreseeable.

{¶ 19} “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.), citing Haninger v. Haninger, 8 Ohio App.3d

286, 456 N.E.2d 1228 (10th Dist.1982). Ordinarily, “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.” (Citations omitted.) Id. “ ‘Abuse of discretion’ has

been defined as an attitude that is unreasonable, arbitrary or unconscionable.” AAAA -9-

Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,

161, 553 N.E.2d 597 (1990), citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87,

482 N.E.2d 1248 (1985).

{¶ 20} Richard contends that because he “is unable to work and on Social Security

Disability for himself, such that he can barely provide for his own living and medical

expenses, spousal support in the amount of $1,750.00 is unreasonable and

inappropriate.” Appellant’s Brief, p. 9. According to Richard, the trial court erred when

it failed to consider all of the parties’ income sources. In particular, Richard argues that

the trial court failed to consider how much Catherine’s income would change if she

received the benefits that she is eligible to receive under Richard’s pension. Richard

believes it was error for the trial court to require Richard to take his pension benefits now

but allow Catherine to wait to take her pension benefit. Id. at 14.

{¶ 21} Catherine responds that since Richard’s spousal support obligation was

reduced in February 2019, “no further substantial change of circumstances has occurred,

other than [Richard’s] voluntary resignation of his employment.” Appellee’s Brief, p. 13.

Catherine notes that “Ohio courts have recognized that retirement alone is not necessarily

a change as between the parties which might justify the termination or suspension of

spousal support.” Id., citing Reveal. Catherine also argues that Richard did not present

any evidence as to the amount of retirement benefits that Richard would be receiving

from his pension. According to Catherine, “[w]ithout this evidence, the trial court could

not determine whether the combined amount of his Social Security disability benefits plus

his anticipated pension benefits would substantially reduce his income from that which it -10-

was at the time of the last reduction in 2019.” Appellee’s Brief, p. 9. Catherine points

out that Richard “also failed to present any testimony suggesting that his monthly

expenses had increased since 2019.” Id. Finally, Catherine contends that “[t]here is no

legal requirement that [she] exhaust potentially available pension income as a

prerequisite to continuing ability to receive previously established spousal support.” Id.

at 11, citing Borton v. Borton, 6th Dist. Fulton No. F-10-003, 2011-Ohio-143.

{¶ 22} Both parties presented exhibits at the September 6, 2023 hearing setting

forth their monthly expenses and both parties testified as to their current incomes.

Richard essentially broke even each month when comparing his expenses with his Social

Security disability income, while Catherine had a monthly deficit of over $1,700 when

comparing her expenses with her disability income. Notably, one of Richard’s largest

monthly expenses was $864 for a car payment. Defendant’s Exhibit G. He testified that

this car payment was for a used 2015 Chevy Impala that he purchased after he received

his lump sum Social Security disability payment. He did not testify as to why he needed

to purchase a car given his lack of employment other than that he could no longer borrow

his Dad’s car. And it was unclear when he would have that car paid off or why the

monthly car payment was so high for that type of older vehicle. The purchase of this car,

however, did continue a pattern that permeates the record. Richard has consistently

chosen to spend his income on everything but his spousal support obligation. When

comparing Catherine and Richard’s financial situations, Catherine appears to have

consistently made wise and conservative financial decisions while Richard has not. It is

not surprising the trial court found Richard in contempt of court given his failure to use -11-

any of his over $19,000 in lump sum Social Security disability benefits to make any

payments on his spousal support arrearage or his currently monthly obligation. Richard

even testified that, at the time of the hearing, he had money in his checking account,

savings account, and a 401k retirement account that he had failed to use to make

payments toward his monthly spousal support obligation or growing arrearage. Further,

Richard made the decision to defer taking his pension benefits because he thought it was

more appropriate to start drawing from that pension at age 70. Once again, he made

this conscious decision in spite of a court order requiring him to make spousal support

payments.

{¶ 23} Despite Richard’s blatant disregard of the trial court’s spousal support

orders, which culminated in a finding of contempt of court, it appears undisputed that

Richard is now disabled to the point that he is unable to earn any additional income

through employment. This fact establishes that there had been a substantial change in

circumstances since the most recent modification of spousal support. Indeed, at the time

of the most recent modification of spousal support in August 2022, the parties and the

trial court appeared to believe that Richard would regain employment at some point in the

near future. But this did not happen. Because Richard showed a substantial change in

circumstances, the trial court was required to closely review the parties’ financial

situations to determine what would be an appropriate amount for Richard to pay in

monthly spousal support going forward. R.C. 3105.18(C)(1).

{¶ 24} It is not evident from the record that the trial court conducted such a review

of the parties’ financial situations. Although the trial court was not necessarily required -12-

to make findings related to the factors listed in R.C. 3105.18(C)(1), it is always helpful

and appreciated when it does so. Without any findings regarding these factors, we are

left to review a record that reveals both parties appear to be facing monthly budgetary

deficits. As we pointed out above, Richard’s monthly car payment seems remarkably

high for the type of car he purchased, which may signal that his monthly car payment will

be ending relatively soon. Or there may be expenses within Richard’s list that the trial

court did not believe were credible expenses or ones that the trial court believed were

inflated. But the trial court stated nowhere that it found Richard not credible or that his

expenses were inflated or not credible. Therefore, we must conclude on the particular

record before us that the trial court abused its discretion by not considering the relevant

evidence in the record, including the factors set forth in R.C. 3105.18(C)(1).

{¶ 25} Richard argues on appeal that the trial court should have considered how

much additional income Catherine would have if she chose to take her share of Richard’s

pension now rather than at age 65. Catherine in turn argues that the trial court should

have considered how much additional income Richard would have if he had taken his

share of his pension now rather than later. Richard also believes it is unfair that the trial

court did not order Catherine to take her share of Richard’s pension now while requiring

Richard to take his pension now. We note that the trial court ordered Richard to take his

pension now. The trial court ordered this as part of its contempt power. Richard did not

challenge the contempt finding on appeal. Further, we cannot conclude that the trial

court should have ordered Catherine to take out her portion of Richard’s pension. There

was no evidence in the record that Catherine chose to not withdrawal at this time in order -13-

to artificially lower her income and increase Richard’s spousal support obligation.

Rather, she explained why withdrawing now would cause a significant blow to her income

in just a few years. If anything, her decision to delay her pension benefits by a couple of

years ultimately will result in a higher income for her, which will actually benefit Richard

in terms of possibly lowering his spousal support obligation once she takes the benefits

in a couple of years. And it is important to remember that Richard, not Catherine, is the

party who was ordered to pay spousal support and chose not to do so. The fact that

Catherine had been much better than Richard at conserving her assets over the years

does not and should not affect Richard’s court-ordered spousal support obligation. See

Borton, 6th Dist. Fulton No. F-10-003, 2011-Ohio-143, at ¶ 14 (concluding that obligor’s

argument that an obligee’s “assets somehow lessen or negate his legal monthly spousal

support obligation towards [the obligee’s] monthly living expenses is not supported by

relevant or controlling law or precedent”).

{¶ 26} Richard’s assignments of error are sustained on the basis that the trial court

failed to consider the factors in R.C. 3105.18(C)(1) after Richard established a substantial

change in circumstances due to his involuntary termination of employment. On the

record before us, we cannot determine the proper amount of spousal support that should

be awarded to Catherine going forward. Moreover, that determination should be made,

in the first instance, by the trial court after considering all the relevant evidence. On

remand, the trial court may need to receive additional evidence from the parties in order

to closely review their alleged living expenses and all sources of income, including what

amount Richard will receive from his pension. -14-

III. Conclusion

{¶ 27} Having sustained Richard’s assignments of error, we will reverse the

judgment of the trial court as it relates to spousal support; we remand the cause for the

trial court to consider all the relevant evidence and to determine the appropriate amount

of spousal support that Richard should pay Catherine on an ongoing basis. With respect

to the contempt finding, the judgment of the trial court will be affirmed.

EPLEY, P.J. and HUFFMAN, J., concur.