[Cite as Kelly v. Kelly, 2019-Ohio-4723.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
RODNEY KELLY C.A. No. 18AP0048
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE ANGELA KELLY COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellant CASE No. 2014 DR-A 000330
DECISION AND JOURNAL ENTRY
Dated: November 18, 2019
CARR, Judge.
{¶1} Defendant-Appellant Angela Kelly appeals from the judgment of the Wayne
County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} Ms. Kelly and Plaintiff-Appellee Rodney Kelly married in 1989 and two children
were born of the marriage. At the time of this appeal, both children were no longer minors. In
2014, Mr. Kelly filed a complaint for divorce and Ms. Kelly thereafter filed an answer and
counterclaim also seeking a divorce. In 2016, a judgment entry of divorce was filed. Relevant to
this appeal, the judgment provided that “[s]pousal support shall be paid to [Ms. Kelly] in the
amount of $1,200 per month for ninety-six (96) months. * * * Spousal support shall terminate
on August 31, 2024 unless sooner terminated upon the death of either party, or the re-marriage of
[Ms. Kelly]. The Court shall retain jurisdiction over the issue of spousal support in both amount
and length of time.” In addition, the parties were ordered to split the credit card debt from a 2
Capital One card with Mr. Kelly being ordered to pay $13,261.51 and Ms. Kelly being ordered to
pay $4,686.50.
{¶3} In November 2017, Mr. Kelly filed a motion to modify or terminate his spousal
support obligation based upon his deteriorating health and earnings, and Ms. Kelly’s cohabitation
with another man. In addition, the motion sought a modification of Mr. Kelly’s child support
obligation. Subsequently, Ms. Kelly filed motions for contempt for Mr. Kelly’s alleged failure to
pay child and spousal support as outlined in the decree and for his alleged failure to pay his
portion of the then-minor child’s medical expenses. In addition, she filed a motion seeking to
offset the amount she owed on the Capital One credit card against Mr. Kelly’s spousal support
arrearage.
{¶4} A hearing was held before a magistrate in April 2018. It was undisputed that Mr.
Kelly ceased paying spousal support payments in September 2017. Mr. Kelly presented
evidence, including his testimony and a portion of a letter from the Social Security
Administration, that subsequent to the divorce he became disabled, at which time he also stopped
working. Mr. Kelly testified that he was diagnosed with spinal stenosis which caused him pain
and required him to undergo multiple surgeries. For the twelve weeks following Mr. Kelly’s last
day of work in May 2017, he was paid through his employer’s short-term disability. Following
that he was paid through a long-term disability insurance plan. While he was receiving the long-
term disability payments he applied for disability with the Social Security Administration in
November 2017. Mr. Kelly was notified in February 2018 by the Social Security Administration
that he was found to be disabled as of May 5, 2017, and that he was entitled to receive monthly
benefits beginning in November 2017. His monthly benefit, beginning in December 2017, was
$2,489.90, or approximately $30,000 per year. This amount is close to the amount Ms. Kelly 3
testified to earning: approximately $27,000. The child support worksheet accompanying the
divorce decree reflected that Mr. Kelly’s income at the time of the divorce was approximately
$71,000. In 2017, Mr. Kelly received approximately $51,000 in wages from his employer,
which included disability payments.
{¶5} In addition, testimony was presented from Mr. Kelly and Mr. Kelly’s father’s
attorney concerning Mr. Kelly’s expected inheritance from his father’s estate. While Mr. Kelly
was the sole beneficiary of the will, at the time of the hearing, the estate remained open and Mr.
Kelly had only acquired possession of an old car. The remaining assets were five parcels of real
estate. The attorney appeared uncertain as to when the estate would close. The attorney noted
that there were several debts of the estate, including credit card bills, back taxes, and attorney
fees that needed to be addressed, as well as an oil and gas well that needed to be plugged and a
new survey that needed to be conducted on the properties. At the time of the hearing, there was
one house on one of the properties that was being rented. Mr. Kelly received the rents from that
property, but only because he was the personal representative of the estate. Thus, the rental
income was income of the estate, not of Mr. Kelly personally.
{¶6} The magistrate issued a decision finding that Mr. Kelly was involuntarily
unemployed as of May 5, 2017. The magistrate further concluded that that change constituted a
substantial change of circumstances that was not contemplated by the court or the parties at the
time of the divorce. The magistrate concluded that Mr. Kelly’s income was $44,268. In so
finding, the magistrate included as income $1,200 a month in rental income from two properties
on the parcels that Mr. Kelly was to inherit. Due to Mr. Kelly’s change in circumstances, the
magistrate determined that the spousal support award should be reduced to $700.00 per month.
The magistrate’s decision indicated that the court would continue to maintain jurisdiction over 4
the issue of spousal support in both amount and length of time. In addition, the magistrate found
Mr. Kelly in contempt for failing to pay spousal support as ordered. To account for the
arrearage, the spousal support obligation was extended until 2025. That same day, the trial court
issued a judgment entry mirroring the magistrate’s findings.
{¶7} Both parties filed objections to the magistrate’s decision. Thereafter, the trial
court issued an entry ruling on the objections. The trial court concluded that “it is no longer
reasonable or equitable to require [Mr. Kelly] to pay spousal support. This is because of his total
disability. Someday [he] will receive some real estate from his father’s estate. But it would be
highly speculative to consider this as a potential source of funds with which to pay spousal
support.” The trial court then expressly terminated Mr. Kelly’s spousal support obligation. As
to the contempt finding for Mr. Kelly’s failure to pay spousal support, Mr. Kelly was ordered to
pay the $7,300 arrearage in increments of $200 per month. Ms. Kelly’s objection concerning her
request to offset the credit card debt against the spousal support arrearage was overruled.
{¶8} Ms. Kelly has appealed, raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING RODNEY KELLY’S MOTION TO TERMINATE SPOUSAL SUPPORT AS IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO THE LAW. SPECIFICALLY, THERE IS NO SUBSTANTIAL CHANGE BASED UPON RODNEY’S FAILURE TO PROVE AN INVOLUNTARY DECREASE IN INCOME AND RODNEY’S FULL INCOME AND ASSETS WERE NOT CONSIDERED BY THE TRIAL COURT.
{¶9} Ms. Kelly argues in her first assignment of error that the trial court abused its
discretion in terminating Mr. Kelly’s spousal support obligation. Specifically, she maintains that
Mr. Kelly failed to establish an involuntary decrease in his income and the trial court abused its 5
discretion in failing to consider Mr. Kelly’s expected inheritance as part of his income or the
potential for others to help with his expenses.
{¶10} “Generally, this Court reviews a trial court’s action with respect to a magistrate’s
decision for an abuse of discretion.” (Internal quotations and citations omitted.) Condon v.
Rockich, 9th Dist. Summit No. 28479, 2018-Ohio-71, ¶ 10. An abuse of discretion implies that
the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). “In so doing, we consider the trial court’s action with
reference to the nature of the underlying matter.” (Internal quotations and citations omitted.)
Condon at ¶ 10. “This Court reviews the domestic relations court’s decision regarding the
modification of spousal support for an abuse of discretion.” Wuscher v. Wuscher, 9th Dist.
Summit No. 26924, 2014-Ohio-377, ¶ 9. The Supreme Court of Ohio has concluded that “the
difference between a modification and a termination of alimony was a distinction without a
difference. Modification and termination of an alimony award are simply different points or
degrees on the same continuum.” (Internal quotations and citation omitted.) Kimble v. Kimble,
97 Ohio St.3d 424, 2002-Ohio-6667, ¶ 7. In order for a trial court to have jurisdiction to modify
an award of spousal support following a divorce, “there must be a reservation of jurisdiction to
modify the award in the divorce decree.” Daubenmire v. Daubenmire, 9th Dist. Medina No.
18CA0045-M, 2019-Ohio-2372, ¶ 9. The moving party must also demonstrate (1) a substantial
change in circumstances that renders the award no longer reasonable and appropriate; and (2)
that neither the trial court nor the parties took into account the change “as a basis for the existing
award when it was established or last modified, whether or not the change in circumstances was 6
foreseeable.” R.C. 3105.18(F)(1).1 In addition, R.C. 3105.18(F)(1) is subject to R.C.
3105.18(F)(2), which states that “[i]n determining whether to modify an existing order for
spousal support, the court shall consider any purpose expressed in the initial order or award and
enforce any voluntary agreement of the parties. Absent an agreement of the parties, the court
shall not modify the continuing jurisdiction of the court as contained in the original decree.”
{¶11} There is no dispute that the divorce decree contains a provision retaining
jurisdiction. Specifically, it states: “Spousal support shall be paid to [Ms. Kelly] in the amount
of $1,200 per month for ninety-six (96) months. * * * Spousal support shall terminate on August
31, 2024 unless sooner terminated upon the death of either party, or the re-marriage of [Ms.
Kelly]. The Court shall retain jurisdiction over the issue of spousal support in both amount and
length of time.” In fact, Ms. Kelly concedes the same in her brief. Moreover, neither side has
argued that the language of the decree prevented the trial court from terminating spousal support
based upon Mr. Kelly’s disability and change in financial circumstances.2 See App.R. 16(A)(7).
Involuntary Unemployment
{¶12} First, Ms. Kelly asserts that the evidence Mr. Kelly presented was insufficient to
establish he was involuntarily unemployed. Ms. Kelly points out that Mr. Kelly did not present
any medical evidence about his condition. However, in cases involving the initial determination
1 Language in the uncodified portion of 2011 Am.H.B. No. 461, Section 4 indicates an intent by the General Assembly to abrogate Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222. See Bixler v. Bixler, 12th Dist. Clermont No. CA2016-12-081, 2017-Ohio- 7022, ¶ 23. Accordingly, this Court will rely on the language in the statute in analyzing whether modification of the spousal support award was authorized. 2 There is an argument that the law set forth in Fuller v. Fuller, 9th Dist. Summit No. 28891, 2018-Ohio-5313, ¶ 9-17, might support the conclusion that the trial court could not terminate spousal support under these circumstances. See id. at ¶ 16. However, we conclude that the language in the decree in this case is distinguishable from the language in the decree in Fuller, such that we determine Fuller is distinguishable from the instant matter. See id. at ¶ 3 (setting forth the terms of the decree). 7
of spousal support, this Court has stated that “[i]n a divorce action, a spouse does not have to
present expert testimony that h[is] medical problems prevent h[im] from earning a living.”
Madcharo v. Madcharo, 9th Dist. Lorain No. 14CA010547, 2015-Ohio-2191, ¶ 11. “‘[T]he
crucial focus is whether the party asserting a disability presents evidence explaining how h[is]
disability limits his or herself.’” Id., quoting Albrecht v. Albrecht, 11th Dist. Trumbull No. 2013-
T-0124, 2014-Ohio-5464, ¶ 22. In addition, Ms. Kelly argues that Mr. Kelly failed to
demonstrate his disability was permanent, he could not return to work doing something else, or
whether he could return to work and still be considered disabled.
{¶13} Here, Mr. Kelly testified that he was diagnosed with spinal stenosis. When asked
why he could no longer work, Mr. Kelly testified that he
h[as] spinal stenosis throughout [his] spine, degenerative disks throughout [his] spine, arthritis, * * * impingements on the right and left side of [his] extremities, which go down the right and left hand arm, constant pain in the neck, they have [him] on 4800 milligrams of gabapentin, off and on Vicodin. [He’s] had surgeries on [his] right arm, * * * left arm and [his] wrists to try and eliminate the pain, they’ve actually cut nerves, [his] left and right now, [his] four fingers are numb, they want [him] to continue to wear the splint and the sling until hopefully [the] nerves will grow back.
{¶14} As discussed above, Mr. Kelly testified that he stopped working on May 5, 2017,
and initially began receiving short-term disability from his employer and then began to collect
long-term disability through a disability insurance company. In November 2017, Mr. Kelly
applied for Social Security Disability. Mr. Kelly submitted a portion of a letter from the Social
Security Administration which demonstrated that he was “entitled to disability benefits
beginning November 2017” and he “became disabled under [its] rules on May 5, 2017.” Further,
“[t]o qualify for disability benefits, [Mr. Kelly] [had to] be disabled for five full calendar months
in a row.” The letter also indicated that, beginning December 2017, Mr. Kelly’s monthly benefit 8
was $2,489.90. Nothing in the letter indicated that the benefits will terminate or that his
disability is temporary.
{¶15} Based upon the evidence presented at the hearing, we cannot say that the trial
court’s conclusion that Mr. Kelly was involuntary unemployed was unsupported by the evidence.
See Albrecht, 2014-Ohio-5464, at ¶ 24.
Inheritance
{¶16} Ms. Kelly additionally argues that the trial court abused its discretion in failing to
consider the assets in Mr. Kelly’s father’s estate in calculating Mr. Kelly’s income. However,
we cannot conclude that the trial court abused its discretion in not considering those assets. The
estate consisted almost entirely of five parcels of real estate. As mentioned above, while Mr.
Kelly was the sole beneficiary in the will, Mr. Kelly’s father’s estate had not yet closed at the
time of the hearing and, from the testimony, it appears that there were several issues that needed
to be resolved before the estate could be closed. Mr. Kelly’s father’s attorney pointed out there
were several debts of the estate, including credit card bills, back taxes, and attorney fees that
needed to be addressed, as well as an oil and gas well that needed to be plugged and a new
survey that needed to be conducted on the properties. While, at the time of the hearing, one
house on one of the properties was being rented and Mr. Kelly received the rents from that
property, he only did so because he was the personal representative of the estate. Thus, the rental
income was income of the estate, not of Mr. Kelly personally.
{¶17} Therefore, there was evidence that while Mr. Kelly would undoubtedly inherit
something of value when the estate closed, it was unclear when Mr. Kelly would do so, or how
much Mr. Kelly would actually inherit after the debts of the estate were satisfied. Accordingly, 9
we cannot say that Ms. Kelly has demonstrated that the trial court erred in failing to consider the
assets of the estate in determining Mr. Kelly’s income.
Additional Income
{¶18} Finally, Ms. Kelly argues that the trial court failed to consider that Mr. Kelly
could obtain additional income or financial assistance from his girlfriend and adult son, who
lived with Mr. Kelly. Mr. Kelly testified that he did not charge his girlfriend or son rent or
require them to pay Mr. Kelly’s bills. In fact, Mr. Kelly claimed to not know how much his
girlfriend earned. Nonetheless, his girlfriend helped with chores and sometimes bought
groceries, whereas his adult son, who only made $10.00 per hour, helped out when he was able
to. The fact that the trial court did not mention these details in its entry does not require the
conclusion that the trial court failed to consider them in rendering its decision. The trial court in
its original judgment entry noted that it considered the evidence presented. The trial court was
also presented with Ms. Kelly’s testimony that she lived with an adult male in a house his parents
owned. She also testified that she did not know how much this individual earned. While she
paid rent, the only utilities she testified to paying were garbage and cable. Further, there was
evidence presented that Ms. Kelly is seven years younger than Mr. Kelly and that she had no
health problems at the time of the hearing. Moreover, Ms. Kelly’s income of approximately
$27,000 was fairly close to the amount of money Mr. Kelly would receive each year in disability
payments. Whereas, at the time of the divorce, Mr. Kelly earned approximately $71,000 per
year.
{¶19} Given the totality of the evidence, we cannot say that Ms. Kelly has demonstrated
that the trial court failed to consider certain evidence, or, even if it did fail to do so, she has not 10
demonstrated that consideration of such evidence would lead to the conclusion that the trial court
abused its discretion in terminating Mr. Kelly’s spousal support obligation.
{¶20} In light of Ms. Kelly’s arguments on appeal, we cannot say that she has
demonstrated that the trial court abused its discretion in terminating Mr. Kelly’s spousal support
obligation.
{¶21} Ms. Kelly’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY DENYING ANGELA KELLY’S REQUEST TO OFFSET RODNEY’S FINANCIAL RESPONSIBILITY FOR THE CAPITAL ONE CREDIT CARD AGAINST THE AMOUNT OWED BY RODNEY FOR SPOUSAL SUPPORT ARREARAGES.
{¶22} Ms. Kelly argues in her second assignment of error that the trial court erred in
denying her motion to offset her credit card obligation under the decree against Mr. Kelly’s
spousal support arrearage.
{¶23} Essentially, Ms. Kelly argues that Mr. Kelly’s non-payment of spousal support
beginning in September 2017 hindered her ability to pay the credit card obligation in the
timeframe required by the trial court. She maintains that denying her motion to offset that
liability against Mr. Kelly’s spousal support arrearage was inequitable as she will not be able to
comply with the trial court order.
{¶24} In November 2017, the trial court ordered that Ms. Kelly must pay Mr. Kelly
$4,686.50 for the credit card debt detailed in the decree. Ms. Kelly was to do so over the course
of the following year, with one half due in six months. First, given that over a year has passed, it
is possible that Ms. Kelly’s argument is moot, as it is possible Ms. Kelly has paid the debt.
Notably, the last entry on the trial court docket in this matter is dated October 23, 2018, and this
Court cannot locate any entries indicating the debt remains unpaid. 11
{¶25} Irrespective, Ms. Kelly has not demonstrated the trial court abused its discretion
in denying her motion. Ms. Kelly does not dispute that she owes the money, nor did she present
any evidence that she would be unable to pay the debt, aside from her conclusory testimony that
she was unable to do so. Ms. Kelly did not detail any efforts she undertook to secure the
necessary funds. For example, Ms. Kelly did not testify that she was unable to obtain a loan for
that amount. In addition, while Ms. Kelly maintains that an offset would be the only equitable
solution, Ms. Kelly has not explained why moving the trial court to extend the payment deadline
would not be a viable alternative.
{¶26} Ms. Kelly points to Young v. Young, 9th Dist. Wayne No. 16AP0016, 2017-Ohio-
238, in support of her argument that the trial court abused its discretion in denying her motion for
an offset. However, we conclude Young is distinguishable. In Young, the trial court did elect to
offset the amount of the credit card debt that the wife owed to the husband against the husband’s
spousal support obligation. See id. at ¶ 18. This Court merely concluded that the trial court did
not abuse its discretion in doing so. We did not conclude that it would have been unreasonable
for the trial court to deny a motion for an offset. Accordingly, Ms. Kelly has not demonstrated
that the trial court abused its discretion in denying her motion for an offset.
{¶27} Ms. Kelly’s second assignment of error is overruled.
III.
{¶28} Ms. Kelly’s assignments of error are overruled. The judgment of the Wayne
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed. 12
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 Wayne, 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.
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 Appellant.
DONNA J. CARR FOR THE COURT
CALLAHAN, P. J. SCHAFER, J. CONCUR.
APPEARANCES:
ROSANNE K. SHRINER, Attorney at Law, for Appellant.
RENEE J. JACKWOOD, Attorney at Law, for Appellee.