McCORMAC, J.
Defendant-appellant, Thomas R. Gross, appeals from the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, awarding an increase in sustenance alimony to plaintiff-appellee, Ida Jane Gross, and raises the following assignments of error:
"I. The court erred in adopting without exception the report of the referee filed herein.
"II. The court erred in increasing the alimony because the original alimony order was inadequate to meet plaintiffs pre-divorce standard of living.
"III. The court erred when it applied the wrong principal applicable to an increase in alimony.
"IV. The court erred in ignoring this honorable court's decision decided on September 19, 1985, as to the question of increased alimony.
"V. The court erred when it awarded attorney fees to the plaintiff."
Prior to their September 1968 marriage, an antenuptial agreement was executed by the parties. The agreement addressed the division of property and provided that the wife would receive alimony in the amount of $200 per month. Some fourteen years after their marriage, the parties were divorced. The trial court held that the ante-nuptial agreement was valid and entered judgment accordingly. On appeal, this court struck down the antenuptial agreement and further appeal was taken to the Supreme Court. The Supreme Court in
Gross
v.
Gross
(1984), 11 Ohio St. 3d 99, upheld the general validity of antenuptial agreements but specifically held that the alimony awarded was unconscionable at the time of the divorce and remanded the case to the trial court to enter an appropriate alimony award.
Upon remand, the trial court, considering all factors enumerated in R.C. 3105.18(B), granted alimony to appellee in the amount of $2,500 per month. At the time of the original trial, appellant's gross income was about $250,000 per year. Appellee submitted a list of expenses including those associated with the sole minor child of the parties, totalling about $3,200 per month. On the remand, appellee sought to introduce a revised monthly expense exhibit showing $6,528 in total monthly outlays which exhibit was deemed inadmissible by the trial court. The trial court's evidentiary ruling was not appealed. The alimony award was appealed to this court. We affirmed, holding that the trial court did not abuse its discretion in setting the $2,500 per month alimony award.
On November 9,1988, appellee filed a motion to increase alimony on the basis that appellant's income had increased to about $3.2 million a year and, as such, appellant could now afford an alimony amount which would sustain appellee at her predivorce standard of living. The motion did not concern child support. Appellee stated that appellant is very generous in paying child support and that some of the additional funds voluntarily paid by appellant for child support relieves her of the obligation to pay money for child support matters.
The matter was heard by a referee who concluded that appellee's alimony should be increased to $4,500 per month and that appellee should be awarded $3,000 in reasonable attorney fees. The trial court adopted the referee's finding and entered judgment accordingly.
Appellant's first four assignments of error are interrelated and will be discussed together. These assignments of error all address matters pertaining to the propriety of the increase in monthly alimony.
R.C. 3105.18(C) provides that an original alimony award may only be modified upon a showing of changed circumstances If the movant has adequately shown changed circumstances, the trial court may look to R.C. 3105.18(B) for guidance in modifying the award.
Leighner
v.
Leighner
(1986), 33 Ohio App. 3d 214. Appellee successfully argued in the trial court that appellant's increase of income from $250,000 to $3,200,000 per year constituted a substantial change in circumstances and that R.C. 3105.18(BX7) provided a justification for an increase in alimony. R.C. 3105.18(B)(7) states that when awarding alimony the court should consider the standard of living established by the parties during the marriage Appellee argued that appellant's increase in income now allows him to take alimony payments that will maintain appellee at the standard of living reached during the marriage
In
Leighner,
this court stated:
"* * * [Olrdinarily, the alimony recipient will not be entitled to share in the increased earnings of the alimony obligor, except to the extent that these increased earnings now enable the obligor to pay a share which will support a reasonable predivorce standard of living for the alimony recipient. * * *"
Id.
at 216.
Therefore, the general rule is that an increase in the obligor's income alone will not suffice as a change in circumstances sufficient to allow an increase in periodic alimony payments. The exception to this rule is that an increase in income may justify an increase in alimony if the obligor's income was insufficient at the time of the original decree to support the recipient at the standard of living maintained during the marriage and the increase in income will now allow this level to be reached.
Clearly, at the time of the original decree, appellant was financially able to assume a greater alimony payment. The $30,000 annual alimony obligation represented only twelve percent of appellant's annual salary. The very argument that appellee now advances was rejected by this court
when the original remand action was appealed. The dissentingjudge in
Gross
v.
Gross
(1985), 23 Ohio App. 3d 172, was of the opinion that appellant herein could easily afford an annual alimony obligation of $50,000 to $100,000. However, the majority of the court concluded that a $2,500 per month award was reasonable in light of the standard set forth in R.C. 3105.18(B).
When an issue has been litigated to finality, any party privy to the original action is estopped from relitigating the issue. As the Supreme Court has stated:
"The modern view of
res judicata
embraces the doctrine of collateral estoppel, which basically states that if an issue of fact or law actually is litigated and determined by a valid and final judgment, such determination being essential to that judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. * * *" [Citations
omitted.] Hicks
v.
De La Cruz
(1977), 52 Ohio St. 2d 71, at 75.
At the time of the original alimony award, the trial court had before it appellee's list of monthly expenses and appellant's tax returns evidencing his current income The trial court reviewed all of the evidence in light of the factors listed in R.C. 3105.18(B) and concluded that $2,500 a month was a just and proper alimony award. That judgment was affirmed by this court. Appellant could have afforded more at the time but $2,500 was determined proper by two different courts.
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McCORMAC, J.
Defendant-appellant, Thomas R. Gross, appeals from the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, awarding an increase in sustenance alimony to plaintiff-appellee, Ida Jane Gross, and raises the following assignments of error:
"I. The court erred in adopting without exception the report of the referee filed herein.
"II. The court erred in increasing the alimony because the original alimony order was inadequate to meet plaintiffs pre-divorce standard of living.
"III. The court erred when it applied the wrong principal applicable to an increase in alimony.
"IV. The court erred in ignoring this honorable court's decision decided on September 19, 1985, as to the question of increased alimony.
"V. The court erred when it awarded attorney fees to the plaintiff."
Prior to their September 1968 marriage, an antenuptial agreement was executed by the parties. The agreement addressed the division of property and provided that the wife would receive alimony in the amount of $200 per month. Some fourteen years after their marriage, the parties were divorced. The trial court held that the ante-nuptial agreement was valid and entered judgment accordingly. On appeal, this court struck down the antenuptial agreement and further appeal was taken to the Supreme Court. The Supreme Court in
Gross
v.
Gross
(1984), 11 Ohio St. 3d 99, upheld the general validity of antenuptial agreements but specifically held that the alimony awarded was unconscionable at the time of the divorce and remanded the case to the trial court to enter an appropriate alimony award.
Upon remand, the trial court, considering all factors enumerated in R.C. 3105.18(B), granted alimony to appellee in the amount of $2,500 per month. At the time of the original trial, appellant's gross income was about $250,000 per year. Appellee submitted a list of expenses including those associated with the sole minor child of the parties, totalling about $3,200 per month. On the remand, appellee sought to introduce a revised monthly expense exhibit showing $6,528 in total monthly outlays which exhibit was deemed inadmissible by the trial court. The trial court's evidentiary ruling was not appealed. The alimony award was appealed to this court. We affirmed, holding that the trial court did not abuse its discretion in setting the $2,500 per month alimony award.
On November 9,1988, appellee filed a motion to increase alimony on the basis that appellant's income had increased to about $3.2 million a year and, as such, appellant could now afford an alimony amount which would sustain appellee at her predivorce standard of living. The motion did not concern child support. Appellee stated that appellant is very generous in paying child support and that some of the additional funds voluntarily paid by appellant for child support relieves her of the obligation to pay money for child support matters.
The matter was heard by a referee who concluded that appellee's alimony should be increased to $4,500 per month and that appellee should be awarded $3,000 in reasonable attorney fees. The trial court adopted the referee's finding and entered judgment accordingly.
Appellant's first four assignments of error are interrelated and will be discussed together. These assignments of error all address matters pertaining to the propriety of the increase in monthly alimony.
R.C. 3105.18(C) provides that an original alimony award may only be modified upon a showing of changed circumstances If the movant has adequately shown changed circumstances, the trial court may look to R.C. 3105.18(B) for guidance in modifying the award.
Leighner
v.
Leighner
(1986), 33 Ohio App. 3d 214. Appellee successfully argued in the trial court that appellant's increase of income from $250,000 to $3,200,000 per year constituted a substantial change in circumstances and that R.C. 3105.18(BX7) provided a justification for an increase in alimony. R.C. 3105.18(B)(7) states that when awarding alimony the court should consider the standard of living established by the parties during the marriage Appellee argued that appellant's increase in income now allows him to take alimony payments that will maintain appellee at the standard of living reached during the marriage
In
Leighner,
this court stated:
"* * * [Olrdinarily, the alimony recipient will not be entitled to share in the increased earnings of the alimony obligor, except to the extent that these increased earnings now enable the obligor to pay a share which will support a reasonable predivorce standard of living for the alimony recipient. * * *"
Id.
at 216.
Therefore, the general rule is that an increase in the obligor's income alone will not suffice as a change in circumstances sufficient to allow an increase in periodic alimony payments. The exception to this rule is that an increase in income may justify an increase in alimony if the obligor's income was insufficient at the time of the original decree to support the recipient at the standard of living maintained during the marriage and the increase in income will now allow this level to be reached.
Clearly, at the time of the original decree, appellant was financially able to assume a greater alimony payment. The $30,000 annual alimony obligation represented only twelve percent of appellant's annual salary. The very argument that appellee now advances was rejected by this court
when the original remand action was appealed. The dissentingjudge in
Gross
v.
Gross
(1985), 23 Ohio App. 3d 172, was of the opinion that appellant herein could easily afford an annual alimony obligation of $50,000 to $100,000. However, the majority of the court concluded that a $2,500 per month award was reasonable in light of the standard set forth in R.C. 3105.18(B).
When an issue has been litigated to finality, any party privy to the original action is estopped from relitigating the issue. As the Supreme Court has stated:
"The modern view of
res judicata
embraces the doctrine of collateral estoppel, which basically states that if an issue of fact or law actually is litigated and determined by a valid and final judgment, such determination being essential to that judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. * * *" [Citations
omitted.] Hicks
v.
De La Cruz
(1977), 52 Ohio St. 2d 71, at 75.
At the time of the original alimony award, the trial court had before it appellee's list of monthly expenses and appellant's tax returns evidencing his current income The trial court reviewed all of the evidence in light of the factors listed in R.C. 3105.18(B) and concluded that $2,500 a month was a just and proper alimony award. That judgment was affirmed by this court. Appellant could have afforded more at the time but $2,500 was determined proper by two different courts. As such, the amount necessary to maintain appellee's predivorce standard of living, a factor essential to a determination of the proper alimony amount, was previously litigated and appellee is collaterally estopped from relitigating that issue
Appellee also advances the argument that, even though her monthly expenses had not changed, these expenses were grossly understated in her original expense estimate because appellant had controlled all of the family financial affairs during the marriage and appellee had no way of knowing what amount it would take to maintain her predivorce standard of living. Appellee claims that this misstatement was the result of a lack of discovery, but advances no reason why discovery was not completed. Furthermore, appellee did not assign as error the trial court's ruling excluding her revised expense estimate in the prior appeal of the remand proceedings. Appellee is, therefore, estopped from asserting that argument now.
Under the circumstancesherein, an increase in income constitutes a change in circumstances only when the increase allows an obligor to afford a higher alimony payment in accordance with R.C. 3105.18(B) than the obligor could have afforded at the time of the original decree. Absent a change in circumstances, the alimony recipient is collaterally estopped from relitigating the alimony award based upon the obligor's increased income and capacity to pay. Therefore, the trial court abused its discretion in ordering an increase in sustenance alimony based upon appellant's increase of income.
Appellee also argues that there were increases in her expenses since 1985, caused by inflation or other factors, including a realization of what those expenses really amounted to, that justify and a finding of additional alimony to maintain her predivorce standard of living. However, a fair review of the transcript indicates no proof or even a substantial argument that there were substantial inflationary increases but, instead, the main contention was that Judge Rose erroneously set her alimony at too low a figure in 1985 and that her attorney failed to correctly state her expenses at that time. As previously discussed, the proper amount to maintain her predivorce standard of living was established and cannot be collaterally attacked. Since appellee failed to establish a substantial increase in that previously declared standard, the trial court abused its discretion in allowing additional alimony based upon appellant's additional income or a "previous mistake" by the court or appellee's attorney.
Appellant's first, second, third and fourth assignments of error are sustained.
By his fifth assignment of error, appellant argues that the trial court abused its discretion in awarding $3,000 in attorney fees to appellee.
R.C. 3105.18 and Civ. R. 75 authorize the trial court to award or modify alimony. The alimony award may include a reasonable allowance for attorney fees.
Cassaro
v.
Cassaro
(1976), 50 Ohio App. 2d 368. The decision to allow attorney fees to either party is within the sound discretion of the trial court and will not be overturned absent an abuse of discretion.
Rand
v.
Rand
(1985), 18 Ohio St. 3d 356.
Having concluded that it was error to award an increase in alimony, there no longer exists a basis for the award of attorney fees. Attorney fees are but a part of the larger award of alimony. Removing the alimony necessitates a reversal of the award of attorney fees. See
Cassaro, supra.
This is not to say that attorney fees are only to be awarded to prevailing party as is generally true in civil actions. The award should still be based upon the relative need of the two parties. However, attorney fees may not be awarded to a completely
unsuccessful litigant. Thus, the trial court abused its discretion by awarding attorney fees to appellee.
Appellant's fifth assignment of error is sustained.
Appellant's assignments of error are sustained. The judgment of the trial court is reversed and the case is remanded for further procedure consistent with this opinion.
Judgment reversed and cause remanded.
McKINLEY, J., concurs.
WHITESIDE. J., dissents.
McKINLEY, J., of the Union County Common Pleas Court, sitting by assignment in the Tenth Appellate District.