DiPalma v. Whipple

2023 Ohio 1023

• Court: Ohio Court of Appeals
• Decided: March 29, 2023
• Docket: 30358
• Status: Published

Opinion

[Cite as DiPalma v. Whipple, 2023-Ohio-1023.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

CATHERINE A. DIPALMA C.A. No. 30358

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DOUGLAS P. WHIPPLE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. DR 2005-10-3633

DECISION AND JOURNAL ENTRY

Dated: March 29, 2023

HENSAL, Presiding Judge.

{¶1} Douglas Whipple appeals an order of the Summit County Court of Common Pleas,

Domestic Relations Division, that denied his motion to terminate or modify his spousal support

obligation. This Court reverses.

I.

{¶2} Douglas Whipple (“Husband”) and Catherine DiPalma (“Wife”) divorced in 2006

after thirty-one years of marriage. The parties reached agreement on all the matters at issue in the

divorce, and the terms of their agreement were incorporated into a divorce decree dated November

30, 2006. As part of that agreement, Husband agreed to pay Wife $1,766.00 per month in spousal

support until the death of either spouse or an order issued that modified or terminated support. The

trial court retained jurisdiction over both the amount and duration of Husband’s spousal support

obligation. With respect to modification, the agreement provided: 2

Spousal support may be modified upon a change of circumstances of either party, which shall include, but not be limited to any increase or involuntary decrease in the parties’ wages, salary, bonuses, living expenses or medical expenses.

Husband’s voluntary retirement at age 65 shall be considered as a change of circumstances for purposes of modification and/or termination of spousal support.

On May 7, 2021, Husband moved to terminate or reduce his spousal support obligation, noting

that the divorce decree defined his voluntary retirement as a change in circumstances and that “it

[was] [his] intent to specifically wind down his business.” Husband also argued that termination

of his spousal support obligation was warranted because his income “ha[d] substantially decreased

since the time of the divorce[.]”

{¶3} The matter was referred to a magistrate, who conducted a hearing over the course

of three days. On March 7, 2022, the magistrate issued a decision that denied Husband’s motion,

“strongly not[ing] that when [Husband] initially filed his Motion to Terminate Spousal Support, it

was not stated when [he] was retiring. [Husband] stated he was winding down his law practice

but he is still able to work.” The magistrate concluded that because Husband had represented

himself in ethics proceedings before the Supreme Court of Ohio after filing his motion to terminate

support, he had not retired from the practice of law at the time the motion was filed. The magistrate

also observed that Husband did not file an application with the Supreme Court of Ohio to retire or

resign from the practice of law until December 21, 2021. The magistrate concluded that because

the Supreme Court had not yet ruled on Husband’s application, his “exact retirement date” was

unknown. Apart from that conclusion, the magistrate also decided that having reviewed the factors

set forth in Revised Code Section 3105.18, no substantial change in circumstances had occurred.

{¶4} The trial court entered judgment on the magistrate’s decision on the same date, as

provided by Civil Rule 53(D)(4)(e)(i). Husband filed timely objections, which he supplemented

once the transcript of proceedings had been filed in the trial court. On May 8, 2022, the trial court 3

overruled Husband’s second, third, fourth, fifth, and sixth objections, but concluded that his first

objection “is MOOT as [Husband] is not retired.” (Emphasis in original.)

{¶5} Husband appealed, raising four assignments of error for review.

II.

ASSIGNMENT OF ERROR I

THE RULINGS OF THE TRIAL COURT THAT [HUSBAND] IS NOT RETIRED FROM THE PRACTICE OF LAW AND THAT THE REDUCTION IN [HUSBAND’S] INCOME WAS VOLUNTARY (OVERRULING [HUSBAND’S] FIRST OBJECTION AS MOOT) CONSTITUTED AN ERROR OF LAW, TO THE PREJUDICE OF [HUSBAND].

{¶6} In his first assignment of error, Husband argues that the trial court erred as a matter

of law by interpreting the agreed terms of the parties’ divorce decree without concluding that the

retirement clause was ambiguous. He also argues that the trial court abused its discretion by

concluding that his first objection was moot based on the conclusion that he had not yet retired.

This Court agrees in part.

{¶7} Husband’s first objection argued that the magistrate erred as a matter of fact in

determining that he was not retired. The trial court, reviewing Husband’s second and third

objections first, concluded that he had not demonstrated a change in circumstances that would

justify a modification of support. Having overruled the second and third objections, the trial court

then turned to his first objection and, in that context, concluded that Husband’s first objection was

moot based upon the conclusion that he was not retired.

{¶8} Husband characterizes the trial court’s conclusion that he was not retired as an error

of law grounded in application of the principles of contract interpretation. The trial court did not,

however, engage in any analysis of the terms of the parties’ agreement in the course of considering

his first objection. To the extent that his first assignment of error argues that the trial court made 4

independent errors on that basis when it ruled on his first objection, see Thrush v. Rawling, 9th

Dist. Summit No. 30170, 2023-Ohio-282, ¶ 9, the trial court’s decision does not support that

conclusion. In addition, Husband’s first objection to the magistrate’s decision argued only that the

magistrate erred as a matter of fact. Because Husband did not raise a legal argument in his

objections, it has not been preserved for appeal. See Civ.R. 53(D)(3)(b)(iv); Thrush at ¶ 9.

{¶9} The substance of Husband’s first assignment of error, however, also addresses the

argument made in his first objection to the magistrate’s decision: that the magistrate erred by

concluding that he was not “retired.” In this respect, it appears that although the trial court stated

that Husband’s first objection was moot, the substance of the trial court’s decision overruled that

objection based on the conclusion that Husband was not retired. This Court agrees that the trial

court erred in this regard.

{¶10} This Court generally reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion. Fields v. Cloyd, 9th Dist. Summit No. 24150, 2008-Ohio-

5232, ¶ 9. “In so doing, we consider the trial court’s action with reference to the nature of the

underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-

3139, ¶ 18. A trial court’s decision regarding the modification of spousal support is also reviewed

for an abuse of discretion, which requires that the court’s decision was arbitrary, unconscionable,

or unreasonable. R.O. v. P.O., 9th Dist. Summit No. 28929, 2018-Ohio-2587, ¶ 6, citing

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶11} Section 3105.18(E) provides that an award of spousal support may only be modified

when the trial court determines that either party has experienced a change in circumstances and,

with respect to a divorce, when the decree specifically authorizes modification. “[A] change in

the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in 5

the party’s wages, salary, bonuses, living expenses, or medical expenses[,]” but the change must

be “substantial” such that “the existing award [is] no longer reasonable and appropriate.” R.C.

3105.18(F)(1)(a). In addition, the change in circumstances must not have been considered as a

basis for the existing award of spousal support, whether or not it was foreseeable. R.C.

3105.18(F)(1)(b).

{¶12} Retirement, whether voluntary or involuntary, may constitute a substantial change

in circumstances unless it was undertaken early with the intention of circumventing spousal

support obligations. Stevens v. Stevens, 2d Dist. Montgomery No. 27761, 2018-Ohio-2662, ¶ 23.

A trial court may specify in the divorce decree that a triggering event, such as retirement, will

constitute a change in circumstances for purposes of Section 3105.18(F). Walpole v. Walpole, 8th

Dist. Cuyahoga No. 102409, 2015-Ohio-3238, ¶ 12, citing Lira v. Lira, 12 Ohio App.3d 69 (8th

Dist.1983) and Jordan v. Jordan, 3d Dist. Hancock No. 5-05-24, 2005-Ohio-6028, ¶ 9. In this

case, the divorce decree incorporated the parties’ agreement that spousal support would continue

until the death of either party or an order of the trial court terminating the support obligation. The

terms of that agreement also provided that Husband’s retirement at the age of sixty-five would

constitute a change of circumstances with respect to the modification or termination of support.

The parties do not dispute that if Husband is retired, these provisions apply.

{¶13} The magistrate recognized that the terms of the decree provided that Husband’s

retirement would be considered a change in circumstances but concluded that Husband had not

retired. In reaching this conclusion, the magistrate emphasized that Husband did not provide a

date-certain for his retirement when he filed his motion and that Husband testified that he was still

able to work. The magistrate also noted that Husband represented himself in a disciplinary matter

after his motion to modify or terminate support was filed and observed that Husband did not file 6

an application with the Supreme Court of Ohio regarding his retirement or resignation until more

than six months after the motion was filed. The magistrate viewed a ruling from the Supreme

Court of Ohio on that application as determinative. Likewise, when reviewing Husband’s

objections to the magistrate’s decision, the trial court concluded that “[Husband] was not retired

but had willingly ‘wound down’ his law practice which resulted in a change in income.” The trial

court, like the magistrate, considered the status of Husband’s application with the Supreme Court

of Ohio as the sole determining factor.

{¶14} Husband’s application, however, was not the only evidence in the record relevant

to the question of his retirement. While this Court makes no ultimate determination about whether

the evidence as a whole supports the conclusion that Husband is retired as contemplated by the

divorce decree, we conclude that, given the record before the trial court, the trial court abused its

discretion by concluding that Husband was not retired based solely on the status of his application

with the Supreme Court of Ohio. Husband’s first assignment of error is sustained, in part, on that

basis.

ASSIGNMENT OF ERROR II

THE RULING OF THE TRIAL COURT THAT [HUSBAND] HAD NOT PRODUCED SUFFICIENT RECORDS TO SHOW THE TOTAL FUNDS THAT HE HAD RECEIVED AS GUARDIAN, ADMINISTRATOR, ATTORNEY AND HEIR FROM [HIS FATHER] OR HIS ESTATE (OVERRULING [HUSBAND’S] FOURTH OBJECTION) CONSTITUTED AN ERROR OF LAW OR ABUSE OF DISCRETION, TO THE PREJUDICE OF [HUSBAND]. 7

ASSIGNMENT OF ERROR III

THE RULING OF THE TRIAL COURT THAT THE MAGISTRATE HAD PROPERLY CONSIDERED ALLEGED DISTRIBUTIONS TO [HUSBAND] FROM [HIS FATHER’S] ESTATE BEYOND THOSE ESTABLISHED BY [HUSBAND’S] TESTIMONY (OVERRULING [HUSBAND’S] FIFTH OBJECTION) CONSTITUTED AN ERROR OF LAW OR ABUSE OF DISCRETION, TO THE PREJUDICE OF [HUSBAND].

ASSIGNMENT OF ERROR IV

THE RULING OF THE TRIAL COURT THAT THE RECORD DOES NOT DEMONSTRATE A SUBSTANTIAL CHANGE OF CIRCUMSTANCES JUSTIFYING TERMINATION OR REDUCTION OF SPOUSAL SUPPORT (OVERRULING [HUSBAND’S] SECOND AND THIRD OBJECTIONS), CONSTITUTED AN ERROR OF LAW OR ABUSE OF DISCRETION, AND WAS NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE, TO THE PREJUDICE OF [HUSBAND].

{¶15} In light of this Court’s resolution of Husband’s first assignment of error, his second,

third, and fourth assignments of error are premature.

III.

{¶16} Husband’s first assignment of error is sustained in part. His second, third, and

fourth assignments of error are premature. The judgment of the Summit County Court of Common

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

consistent with this opinion.

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 8

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT

STEVENSON, J. FLAGG LANZINGER, J. CONCUR.

APPEARANCES:

DOUGLAS P. WHIPPLE, pro se, Appellant.

JOHN M. DOHNER, Attorney at Law, for Appellee.