[Cite as Mlakar v. Mlakar, 2013-Ohio-100.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98194
JONI M. MLAKAR
PLAINTIFF-APPELLANT
vs.
ROBERT B. MLAKAR DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-293579
BEFORE: Stewart, A.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: January 17, 2013 ATTORNEY FOR APPELLANT
Gregory J. Moore Stafford & Stafford Co. 55 Erieview Plaza, 5th Floor Cleveland, OH 44114
ATTORNEY FOR APPELLEE
Suzanne M. Jambe Baker & Hostetler, L.L.P. 3200 PNC Center 1900 East 9th Street Cleveland, OH 44114 MELODY J. STEWART, A.J.:
{¶1} Appellant Joni Mlakar, n.k.a. Joni Harter, appeals from a domestic relations
division order that granted appellee Robert Mlakar’s motion to terminate his spousal
support obligation. Joni argues that the motion should have been dismissed as res
judicata because it was premised on the same grounds as those rejected by the court just
one year before in a different motion to modify spousal support. She also argues that the
court erred by failing to award her the full amount of attorney fees she expended in
seeking to collect support arrears from Robert. Finally, she argues that the court’s
decision to terminate spousal support was against the manifest weight of the evidence.
I
{¶2} The parties were divorced in January 2006 pursuant to an agreement that
required Robert to pay spousal support to Joni in the amount of $3,750 per month. The
parties agreed that the court would have limited jurisdiction to modify spousal support
during the first 48 months following the divorce, and only then if Robert’s income
increased beyond $150,000 per year. At the point where 48 months had elapsed since the
divorce, the parties agreed that the court had jurisdiction to modify both the amount and
duration of spousal support, regardless of Robert’s income.
{¶3} At the time of the divorce, Robert was unemployed. He operated a
consulting business and had three months left on a contract that paid him $6,000 per month. Apart from that consulting contract, he had no other income. He later found
employment in Chicago with two different employers, but that employment ceased in
December 2008.
{¶4} In January 2009, Robert pro se asked the court to “suspend” his spousal
support obligation. As grounds for the motion, he cited his unemployment and inability
to find work. A magistrate denied this motion in December 2009, finding that the terms
of the divorce decree prohibited the court from modifying spousal support until January
2010, unless it was shown that Robert earned more than $150,000 per year. As relevant
to this appeal, the magistrate ordered that Robert pay Joni attorney fees of $7,000 that she
expended in defending the motion to modify spousal support. The court approved and
adopted the magistrate’s decision.
{¶5} In 2010, the parties filed the motions at issue in this appeal. In May 2010,
Joni filed two separate motions asking the court to have Robert show cause as to why he
should not be held in contempt for refusing to pay certain aspects of spousal support and
failing to pay the $7,000 in attorney fees ordered in the magistrate’s December 2009
decision. In August 2010, Robert filed a new motion seeking either a termination or
modification of his spousal support obligation. The motion rested on the same ground
raised in the January 2009 motion — Robert’s continuing unemployment and inability to
find work.
{¶6} The motions were tried to a magistrate who concluded that Robert was
voluntarily unemployed. The magistrate found that Robert had remarried, was wholly supported by his new wife, and living an extravagant lifestyle. To the extent that Robert
tried to find employment, the magistrate found his efforts less than convincing, noting for
example that Robert’s attempts to find consulting work were conditioned on his working
ten-hour weeks at between $3,000 and $5,000 per month. The magistrate found these
compensation demands were unrealistic, and further found that Robert failed to offer any
evidence that his job proposals had actually been rejected. As a result, the magistrate
found that “[s]ince Obligor’s unemployment is found to be voluntary, there is no change
in circumstances and therefore there should be no modification of the award through July,
2011.”
{¶7} The magistrate went on to find, however, that Robert had begun collecting
social security benefits as of July 2011. She stated:
The magistrate further finds that Obligor is entitled to retire once he reaches retirement age, and that therefore, it is appropriate and reasonable for there to be a termination date. His retirement income is less than Plaintiff’s income. The magistrate takes judicial notice that, Plaintiff started receiving temporary support on July 1st, 2003. The magistrate further finds that a total duration of spousal support of eight years and one month would be appropriate for a twenty-two year marriage.
{¶8} As for Joni’s motion to hold Robert in contempt for failing to pay spousal
support arrears, the magistrate found that Robert currently owed Joni $143,462.02. The
magistrate also found that Robert did not make a good faith attempt to comply with the
spousal support order, particularly given his lack of credibility in stating that he could not
find employment. The magistrate ordered Robert to transfer to Joni the sum of $143,462.02 from a retirement account he held. The magistrate also ordered Robert to
pay $20,000 of Joni’s attorney fees.
{¶9} Both parties filed objections to the magistrate’s decision. The court
overruled those objections and adopted the magistrate’s decision in its entirety.
II
{¶10} Joni’s first assignment of error raises a number of complaints about the
magistrate’s decision.1 Primarily, Joni argues that the court erred by failing to give res
judicata effect to its order denying Robert’s 2009 motion to suspend spousal support.
She maintains that the 2009 motion and the 2010 motion that is the subject of this appeal
raised identical grounds — that Robert was unemployed, unable to find work, and thus
incapable of making the support payments. With there being no substantive difference
between the 2009 and 2010 motions, Joni argues that the court should have found that a
rejection of the 2009 motion necessarily required rejection of the 2010 motion.
A
{¶11} Principles of res judicata state that “material facts or questions which were
in issue in a former suit, and were there judicially determined by a court of competent
jurisdiction, are conclusively settled by a judgment therein so far as concerns the parties
to that action and persons in privity with them.” Goodson v. McDonough Power Equip.,
Joni’s third assignment of error complains that the magistrate’s findings were against the 1
manifest weight of the evidence, but she does not separately argue this assignment of error apart from asking us to incorporate her argument from the first assignment of error. This violates the App.R. 16(A)(7) requirement that the appellant present an “argument with respect to each assignment of error presented for review[,]” so we disregard it. Inc., 2 Ohio St.3d 193, 195, 443 N.E.2d 978 (1983). The obvious intent behind giving
preclusive effects to prior judgments is to promote judicial economy and avoid endless
relitigation of issues that have been finally decided. State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, ¶ 18.
{¶12} Principles of res judicata have been applied to bar claims in motions to
modify support obligations that were previously made between the same parties and
finally decided by the court. See In re Kelley, 2d Dist. No. 2000-CA-14, 2000 Ohio App.
LEXIS 5833 (Dec. 15, 2000); Petralia v. Petralia, 11th Dist. No. 2002-L-047,
2003-Ohio-3867.
B
{¶13} The court’s rejection of Robert’s 2009 motion to “suspend” child support
was not res judicata. When denying that motion, the court made it clear that it lacked
jurisdiction to modify spousal support because 48 months had yet to elapse from the entry
of the divorce decree to the time that Robert filed his motion. The court did not consider
the substantive basis for Robert’s motion, so no aspect of the motion could be considered
to have been fully litigated or determined with the kind of finality that would require us to
give preclusive effect to the order denying it. See Laketran Bd. of Trustees v. Mentor,
11th Dist. No. 2001-L-027, 2002-Ohio-3496, ¶ 25.
{¶14} Perhaps anticipating this result, Joni argues that the court should not have
denied the 2009 motion to suspend spousal support on jurisdictional grounds, but because
that motion failed to comply with Loc.R. 19(A) of the Domestic Relations Division of the Cuyahoga County Common Pleas Court. That rule states that “[a]ny motion requesting a
modification (increase or decrease) of an existing * * * spousal support order shall set
forth * * * the reasons for requesting modification.” We have held that a failure to set
forth with specificity the grounds for the motion to modify is a basis for the court to
exercise its discretion to strike the motion. See, e.g., Abernethy v. Abernethy, 8th Dist.
No. 81675, 2003-Ohio-1528, ¶ 7-11.
{¶15} While it is true that Robert’s 2009 motion to suspend spousal support was
not a model of specificity, it is equally true that the court did not consider the substance of
the motion before denying it. It relied entirely on the jurisdictional limits placed on it by
the parties’ divorce decree, finding that it could not order any modification of support as
requested by Robert because the requisite time from the date of the decree had not
elapsed. Jurisdiction trumps discretion. Having no authority to modify spousal support
as requested by Robert, the court had no reason to consider the substance of a motion that
it plainly could not grant. And given Joni’s arguments about the application of principles
of res judicata, we note that Joni did not appeal from this aspect of the court’s decision
denying the 2009 motion to suspend spousal support, so that decision became binding on
all parties. She cannot now relitigate that issue once it became final. What is sauce for
the goose is sauce for the gander.
C
{¶16} Joni next argues that the court erred by terminating Robert’s spousal support
obligation because there had been no change in circumstances to justify termination. She maintains that Robert had been unemployed at the time of the divorce, so his
unemployment at the time he filed the motion could not be considered a change in
circumstances.
{¶17} The magistrate’s decision, as adopted by the court, makes it clear that the
termination of Robert’s support obligation did not result because of his unemployment.
Indeed, the magistrate denied Robert’s motion to modify spousal support going back to
2008 because she found that he was voluntarily unemployed given his half-hearted and
unrealistic attempts to find a job. It was for that reason the magistrate concluded that
“there is no change in circumstances and therefore there should be no modification of the
award through July, 2011.” In other words, Robert’s spousal support obligation
continued in full force despite his arguments that he could not afford to pay because of
his unemployment, a fact confirmed by the magistrate’s order that he pay her a lump sum
of $143,462.02 to cover all of his support arrears.
{¶18} The magistrate terminated Robert’s spousal support obligation because of
his retirement. As Joni notes, the divorce decree was silent on a termination date for
spousal support. The decree provided for an indefinite term. But indefinite does not
mean perpetual, E. Ohio Gas Co. v. Akron, 81 Ohio St. 33, 52, 90 N.E. 40 (1909), and
the parties expressly gave the court jurisdiction to modify the duration of spousal support
after 48 months had elapsed from the date the court issued the divorce decree. The
decision to terminate spousal support was a question of duration. The court had the authority to terminate spousal support even though the divorce decree did not contain a
termination date.
{¶19} At the time the court terminated the support obligation, Robert had reached
the age of 64 and had started to collect social security benefits of $1,984 per month. His
only remaining asset was a retirement account of about $272,000, from which the court
ordered Robert to pay Joni the amount of $143,462.02 to satisfy all of his support arrears.
Joni, on the other hand, earned $31,760 in income, had approximately $200,000 in her
retirement account (in addition to the $143,462.02 that she was to receive for support
arrears), and was 55 years of age.
{¶20} A motion to terminate spousal support falls within the purview of R.C.
3105.18(E). Kimble v. Kimble, 97 Ohio St.3d 424, 2002-Ohio-6667, 780 N.E.2d 273, ¶
7. That section states that the court may modify the amount or terms of spousal support
if the circumstances of either party have changed and the divorce decree specifically
authorizes the court to modify the amount or terms of alimony or spousal support. R.C.
3105.18(F) defines a change in circumstances as “any increase or involuntary decrease in
the party’s wages, salary, bonuses, living expenses, or medical expenses.” The change in
circumstances required by R.C. 3105.18(E) must be one that had not been contemplated
and taken into account by the parties or the court at the time of the prior order.
Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172,
paragraph two of the syllabus. The moving party has the burden to demonstrate a change
in circumstances; whether such a change has occurred is necessarily a factual inquiry that will not be reversed absent an abuse of discretion. Matrka v. Matrka, 100 Ohio App.3d
161, 166-167, 652 N.E.2d 250 (3d Dist.1995).
{¶21} Joni argues that Robert was making nothing before his retirement, so his
receipt of social security benefits is actually an increase in income for him, not a
reduction, and therefore his circumstances do not present a change that would warrant
modification of support and that Robert’s circumstances have actually improved. This
argument ignores the magistrate’s finding that Robert’s half-hearted attempts to find
employment did not excuse him from paying spousal support. The magistrate rejected
Robert’s motion to modify spousal support up to the point of his retirement, ordering that
Robert’s spousal support obligation remain unmodified up to July 2011. This finding
recognized that Robert could not use his voluntary unemployment as a circumstance for a
reduction of his spousal support obligation. He remained fully obligated to pay spousal
support despite being unemployed. This leaves the question of whether the court abused
its discretion by placing a termination date on Robert’s spousal support obligation that
coincided with his receipt of social security benefits.
{¶22} While it is true that Robert was unemployed at the time of the divorce,
nothing in the record indicates that the parties contemplated that he would remain
unemployed. To the contrary, the divorce decree provided that Robert’s spousal support
obligation would increase in yearly increments in the four years following the divorce.
The rational conclusion from this provision is that the parties understood that Robert
would find employment. This is particularly so given the provision of the divorce decree that allowed Joni to seek modification of spousal support within 48 months in the event
Robert’s income exceeded $150,000. That provision would have been pointless if the
parties understood that Robert would not be working after the divorce. To be sure, it is
possible that the clause granting the court jurisdiction to modify spousal support during
the 48 months following entry of divorce was merely a contingency clause, but unless the
parties were aware (but failed to specify) that Robert had an unnamed source of income
from which to satisfy his spousal support obligation, it stands to reason that they
understood that Robert would be obtaining employment from which he would generate
income to make his spousal support payments.
{¶23} We thus find that the court could properly view Robert’s retirement as being
different in kind from his voluntary unemployment. While a voluntary retirement does
not necessarily preclude a finding that an obligor spouse is voluntarily unemployed,
Drummer v. Drummer, 3d Dist. No. 12-11-10, 2012-Ohio-3064, ¶ 31, a voluntary
retirement “does not bar consideration of [a party’s] decrease in income when
determining if there was a substantial change of circumstances.” Robinson v. Robinson,
12th Dist. Nos. CA93-02-027, CA93-03-047, 1994 Ohio App. LEXIS 1436, *2-3 (Apr. 4,
1994). See also Reveal v. Reveal, 154 Ohio App.3d 758, 2003-Ohio-5335, 798 N.E.2d
1132, ¶ 18 (2d Dist.) (“a reduction in income due to voluntary retirement is literally a
change of circumstances.”) So even though the court found that Robert was voluntarily
unemployed up to the point where he began collecting social security benefits and thus
obligated to pay all spousal support arrears up to that point, his reaching retirement age could be, in the court’s discretion, a change in circumstances sufficient to justify a
termination of spousal support.
{¶24} Robert was 64 years of age when he began receiving social security benefits
— a typical age for retirement. The court was obviously reluctant to include the
continued earning capacity of an obligor spouse who retires at a customary age in
calculating a modified spousal support award. This is a rational decision, unless the
failure to do so would cause substantial financial hardship to the obligee spouse. The
evidence presented at trial did not indicate that the termination of spousal support would
result in a substantial hardship to Joni. The divorce decree divided the parties’
retirement assets more favorably to Joni, who received 60 percent of an account valued at
approximately $630,000. Joni also received approximately $281,000 from three escrow
accounts, while Robert received $75,000 as his share of those accounts. Finally, while
the evidence showed that Robert had not timely paid spousal support as required by the
divorce decree, Joni was to receive a lump-sum payment of $143,462.02 for those spousal
support arrears, ensuring that Joni would receive all that she was due.
{¶25} Nothing we say here should be construed to suggest that a spousal support
obligation may not extend beyond a normal retirement age. However, a spousal support
award that requires an obligor spouse who wants to retire to continue to work or to seek
employment beyond the customary retirement age for an indefinite period of time,
imposes a burden on the obligor spouse that must be carefully weighed in reaching a fair
balance. The court should also consider that, absent exceptional circumstances, spousal support awards should not be indefinite, but should terminate upon a date certain.
Kunkle v. Kunkle, 51 Ohio St.3d 64, 554 N.E.2d 83 (1990), at paragraph one of the
syllabus.
{¶26} The magistrate found that Robert’s retirement income was actually lower
than Joni’s present income and that Joni had been receiving spousal support for eight
years. Joni argues that the magistrate abused her discretion by finding that she had been
receiving spousal support for eight years given the evidence that Robert was not actually
paying spousal support as required. But as we have noted, the court rectified that failure
by ordering Robert to pay a lump-sum figure of $143,462.02 to make up those spousal
support arrears, so Joni has received all that was due to her.
{¶27} The magistrate concluded that “a total duration of spousal support of eight
years and one month would be appropriate for a twenty-two year marriage.” Given the
substantial assets awarded to Joni at the time of the divorce, including 60 percent of the
parties’ retirement funds, we cannot say that the court abused its discretion by adopting
the magistrate’s decision and terminating Robert’s spousal support obligation.
D
{¶28} Joni next argues that the magistrate abused her discretion by failing to grant
a motion in limine and exclude Robert from introducing evidence that he failed to
disclose in discovery, despite there being a pretrial request for production of documents.
She claims that Robert’s failure to produce these documents forced her to go into trial
blindly. {¶29} We review the court’s ruling on a motion in limine for an abuse of
discretion. Sokolovic v. Hamilton, 195 Ohio App.3d 406, 2011-Ohio-4638, 960 N.E.2d
510, ¶ 13 (8th Dist.). An abuse of discretion suggests unreasonableness, arbitrariness, or
unconscionability in the trial court’s decision. Valentine v. Conrad, 110 Ohio St.3d 42,
2006-Ohio-3561, 850 N.E.2d 683, ¶ 9.
{¶30} We cannot conclude that the magistrate abused her discretion by allowing
Robert to present the evidence at trial. Joni has repeatedly argued that the claims made
and evidence presented in support of Robert’s January 2010 motion to modify spousal
support was based on the “same facts” used in support of his 2009 motions to modify or
terminate spousal support. See Appellant’s Brief at 8, 11, 14, 15, and 21. If Robert’s
evidence in the 2010 trial relied on the same facts and evidence presented in 2009, it is
unclear how Joni could have been surprised by any of it. She essentially concedes this
point by noting that Robert admitted at trial that the affidavits he submitted in support of
both motions were “the same.” If none of the evidence offered in the 2010 trial differed
in any respect from that offered in the 2009 trial, Joni can show no actual prejudice and
the magistrate did not abuse her discretion by admitting the evidence.
E
{¶31} Joni claimed attorney fees and litigation expenses in the amount of
$36,805.29. The magistrate ordered Robert to pay $20,000 to Joni for her attorney fees
as part of the contempt order finding him in violation of his spousal support obligation.
Joni argues that her requested fees should have been granted in their entirety because she prevailed on her motion to hold Robert in contempt, while Robert’s motions “were
substantially denied, and should have been completely denied[.]” Appellant’s Brief at
24.
{¶32} R.C. 3105.73(B) allows the court to award “reasonable” attorney fees to
either party in any post-decree motion that arises out of the dissolution of a marriage if
the court finds that attorney fees are “equitable.” When deciding whether to award
attorney fees, the court may consider “the parties’ income, the conduct of the parties, and
any other relevant factors the court deems appropriate, but it may not consider the parties’
assets.” Because an award of attorney fees invokes the court’s equitable powers, our
review is limited solely to determining whether the court abused its discretion. Swanson
v. Swanson, 48 Ohio App.2d 85, 90, 355 N.E.2d 894 (8th Dist.1976).
{¶33} While Joni did prevail on her motion to have Robert held in contempt for
failing to pay spousal support and successfully defended Robert’s attempt to modify past
spousal support obligations, Robert did prevail on his motion to terminate future spousal
support. It is difficult for us to conclude that Robert’s motion was “substantially”
denied. If success is viewed by the amount recovered, Joni was arguably more
successful than Robert because she had the larger monetary recovery. The court’s order
requiring Robert to pay approximately two-thirds of Joni’s requested attorney fees
reflected that outcome to the extent it was possible to do so. We therefore find that the
court’s order requiring Robert to pay roughly two-thirds of Joni’s claimed attorney fees
was not an abuse of discretion. F
{¶34} Both parties agree that the magistrate’s decision, as adopted by the court,
contains a typographical error. The magistrate found that Robert did not make a good
faith effort to comply with his spousal support obligations yet stated in her report:
“Defendant could not have paid some amount, however small, to the Plaintiff, against his
spousal support obligation.” (Emphasis added.) Given the context of the magistrate’s
decision, the use of the word “not” was a clear typographical error, but an error that had
no effect on the court’s decision to terminate spousal support. The error does not affect
Joni’s substantial rights and is harmless. See Civ.R. 61.
III
{¶35} A component of Joni’s motion to have Robert show cause why he should
not be held in contempt was that he failed to pay $7,000 in attorney fees as ordered in the
magistrate’s December 2009 decision and adopted by the court. The magistrate’s
decision summarily granted the motion to hold Robert in contempt for failing to pay those
attorney fees, but made no specific disposition of the claim. We therefore sustain this
part of the assignment of error and remand to the trial court to make the appropriate
disposition of the motion.
{¶36} This cause is affirmed in part, reversed in part, and remanded to the
domestic relations division for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas — Domestic Relations Division to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR