[Cite as Charna v. Charna, 2026-Ohio-2823.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MICHAEL L. CHARNA, :
Plaintiff-Appellee, : No. 115717
v. :
WENDY J. CHARNA, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 23, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-356078
Appearances:
Taft, Stettinius & Hollister LLP and Jill Friedman
Helfman, for appellee.
Hans C. Kuenzi Co. L.P.A. and Hans C. Kuenzi, for
appellant.
TIMOTHY W. CLARY, J.:
Defendant-appellant Wendy J. Charna (“Wendy”) appeals from the
trial court’s September 23, 2025 judgment entry regarding post-decree motions filed by Wendy and her ex-husband, plaintiff-appellee Michael L. Charna
(“Michael”). For the following reasons, we affirm.
I. Factual and Procedural History
A. Divorce Decree
During the duration of Wendy and Michael’s 34-year marriage,
Michael worked for the Merit Brass Company (“Merit Brass”), which was owned by
Wendy’s family. The couple’s marriage was terminated by a January 4, 2016 divorce
decree. Under the divorce decree, Michael’s Merit Brass 401(k) account was divided
equally with Wendy. Pursuant to the separation agreement that was incorporated
into the divorce decree, Michael paid Wendy spousal support in accordance with a
two-tier formula that reads, verbatim:
Tier I Spousal Support:
Effective on January 1, 2016 and subject to the provisions of Section 2.2
and commencing on the first day of each successive month (or
according to his pay periods), husband shall pay Tier I spousal support
in the sum of Five Thousand Six Hundred Dollars ($5,600.00) per
month. In the event that husband’s base salary is reduced from the
amount of his base salary on December 23, 2015, through no voluntary
act on husband’s part, the amount of husband’s spousal support
obligation shall be reduced by an amount that would result in after-tax
income to wife of 43.5% of the parties’ joint income according to a
finPlan (or similar program) calculation, with an imputation to wife of
earned income of $81,832.
Tier II Spousal Support:
Effective on January 1, 2016, in addition to Tier I spousal support,
husband shall pay Tier II spousal support to wife in the amount of
37.825% of his earnings in excess of his base salary, with such excess
earnings to include but not be limited to any bonus and vacation pay
that he receives from his employment. Such payments shall be paid to
wife within seven (7) days of husband’s receipt of the excess pay.
Husband’s base salary was recently decreased by 20%. In the event
that husband’s base salary is restored in whole or in part to the amount
of his base salary in May 2015, wife shall be entitled to 37.825% of such
increase in husband’s base salary as additional Tier II spousal support.
Jan. 4, 2016 judgment entry of divorce, p. 8-9. The separation agreement vested the
court with jurisdiction to modify spousal-support obligations in the event of a
substantial change of circumstances.
B. Initial Post-Decree Litigation
The parties first engaged in post-decree litigation in December 2021,
when Michael filed a motion to modify spousal support and Wendy filed eight
motions. The magistrate issued a decision on December 20, 2023, that found, in
pertinent part, Merit Brass’s payments of life insurance premiums and automobile
allowances were perks to be included in Michael’s Tier II spousal-support obligation
(“additional Tier II spousal-support obligations”) and determined a reduction of
Michael’s Tier I spousal-support obligation to $2,558 per month was reasonable and
fair. The trial court issued a July 15, 2024 judgment entry finding that the amount
of the additional Tier II spousal-support obligations due from the date of divorce in
2016 until 2022 remained to be determined; the parties subsequently resolved the additional spousal-support obligations with a lump sum payment as noted in an
October 28, 2024 agreed judgment entry.
C. Current Post-Decree Litigation
During the pendency of the initial post-decree proceedings from
December 2021 through October 2024, Wendy also filed a motion to modify support
on April 30, 2024, and on September 20, 2024, Michael filed a motion to modify
and terminate his spousal-support obligations because he had retired from Merit
Brass. Wendy responded with numerous motions including a September 25, 2024
motion to show cause in which she alleged that Michael failed to pay, as Tier II
spousal support, employer perks including matching contributions to his retirement
plans. Wendy filed another show-cause motion on December 31, 2024, seeking
Tier I and Tier II spousal support. On January 27, 2025, Michael filed a motion to
dismiss Wendy’s show-cause motions, arguing that the issue of employer perks
constituting Tier II spousal support was previously litigated in the initial post-decree
motions and, therefore, was prohibited by res judicata.1
D. Trial
The magistrate conducted trial on Michael’s motion to dismiss,
Michael’s motion to modify and terminate spousal-support obligations, and
1 Michael’s motion to dismiss addressed other motions filed by Wendy in the second
round of post-decree litigation, but those motions are not relevant to this appeal and, accordingly, we will not discuss them.
Wendy’s show-cause motions on February 10, 2025, and February 11, 2025.2
Initially, the magistrate verbally granted Michael’s motion to dismiss on the basis of
res judicata and stated it would preclude Wendy from introducing evidence about
Merit Brass’ contributions to Michael’s 401(k) account. The magistrate permitted
Wendy’s counsel to proffer evidence on that issue. The proffer stated that upon
issuing a subpoena to Merit Brass in October 2024, Wendy learned the employer
had contributed to Michael’s 401(k) account, and Wendy subsequently received the
401(k) account statements in January 2025. The proffer also stated that Michael’s
W-2 forms dated 2016 through 2019 did not reflect contributions by either Michael
or Merit Brass to the 401(k) account and the account statements demonstrated
Merit Brass made contributions from 2017 through 2024. Account statements prior
to 2017 were not provided.
Following the proffer of evidence, the following testimony was
introduced.
E. Michael’s testimony
Michael testified that his 401(k) account was in existence at the time
of the divorce and the account was divided in the divorce. Michael further testified
that to the best of his recollection, Merit Brass had contributed to the 401(k) account
at the time of the divorce and Wendy’s marital portion of the account included
employer contributions. Michael also testified that he did not have an employment
2 The February 2025 trial addressed all outstanding motions filed by Wendy and
Michael, but we will only discuss those motions relevant to this appeal. contract but an unspecified document existed that stated Merit Brass would match
contributions he made to the 401(k) account. Michael could not recall whether that
documentation was exchanged in prior litigation.
Michael stated that he resigned from his position as Vice President of
National Accounts with Merit Brass in December 2023 because he was 67 years old,
had lived two-thirds of his life, and he wanted to reduce his activity: “I was tired
working around 60 hours a week, give or take, burnt out, and a massive amount of
responsibility, and I thought it was time to step away and live my life.” Tr. 88. As
part of his retirement package, Merit Brass paid Michael unused vacation pay plus
18 weeks of severance pay. Michael paid Wendy her proportionate share of the
vacation pay as a Tier II obligation. Even though Michael did not consider the
severance pay part of his base salary, he paid Wendy Tier I spousal support on those
monies. Michael testified that he had not paid spousal support to Wendy since his
last severance paycheck in either April or May 2024.
Michael testified that upon retirement he no longer received a base
salary and, therefore, he believed that he had no obligation to submit Tier I spousalsupport obligations under the two-tiered structure. Michael further stated that he
had no further obligation to remit Tier II payments because absent a base salary he
was not required to pay Tier II support.
A few months after Michael’s retirement, on February 9, 2024,
Achieventures LLC (“Achieventures”), a company owned by Michael’s current wife,
executed a consulting agreement with Merit Brass by which Michael, through the LLC, would provide consulting services to his former employer. In turn, Merit Brass
compensated Michael with hourly pay plus commissions on the sale of copper
tubing (“consulting income”). Michael testified that his consulting income varied
each week and he did not classify his consulting income subject to Tier I or Tier II
spousal support because he no longer earned a base salary. Michael did not pay
Wendy spousal support based upon his earnings from Achieventures.
A July 2024 letter from Michael’s attorney to Wendy’s attorney was
admitted into evidence. The letter stated that while Michael’s income from
Achieventures did not satisfy Tier I or Tier II spousal-support obligations, Michael
would pay Wendy a percentage of that income based upon the two-tiered structure.
Michael testified that there was a misunderstanding between him and his attorney
because he never considered his consulting income subject to the two-tiered
spousal-support structure and never approved submission of the July 2024 letter.
The evidence also included August 2024 correspondence from
Michael’s attorney to Wendy’s attorney that stated, “Upon further thought and
discussion with the magistrate in our call yesterday, it is clear that the consulting
income is not Tier II support since there is no longer Tier I support. Indeed,
Michael’s spousal[-]support obligation may at this point terminate.”
Michael testified to 2024 earnings from Achieventures and his
investments. Michael stated that since retirement, he had taken distributions from
his annuities because his expenses exceeded his income. Michael further stated that
since retiring he had reduced numerous household expenses. Michael testified that he had applied for social security benefits and then rescinded his application
because he wanted to maximize those benefits at a later date. Michael denied hiding
any income in excess of his base salary since the time of the divorce.
Michael’s current wife testified that she is currently employed and
contributes to her and Michael’s household expenses.
F. Wendy’s testimony
Wendy stated that she received her marital portion of the 401(k)
account under the January 2016 divorce decree but at that time she did not have
copies of the account statements nor did she know that Merit Brass had made
contributions to the account. She stated that she first learned in November or
December 2024, from her brother-in-law who used to work for Merit Brass, that the
company had contributed to Michael’s 401(k) account.
Wendy stated that pursuant to the two-tiered spousal-support
formula, she depended upon Michael to report his earnings greater than his base
salary because she had no personal knowledge of that information. Wendy testified
that her initial post-decree litigation included pursuit of Tier II spousal-support
obligations and during that litigation she received payment for her proportionate
share of life insurance premium payments and automobile expenses that she did not
originally know were paid by Merit Brass to Michael. Wendy further testified that she thought Michael had hidden some financial perks paid by Merit Brass to Michael
for which she should have received her proportionate share:
Well, we got divorced and his base salary after we got — as soon as we
got divorced was drastically lowered. And his boss made it up to him
in Tier II, doing other perks secretly, but I’m just starting to learn about
a lot of things now unfortunately that were hidden from me for all these
years.
Tr. 155.
Wendy stated that she last received spousal support in May 2024, and
she needs spousal support to satisfy her expenses. Wendy stated that she knew
Michael would eventually retire but she did not plan for the time when she would no
longer receive spousal support.
Wendy testified that she retired from working as a schoolteacher in
2015, and she testified to her annual gross income from STRS retirement benefits,
part-time tutoring work, and passive income from investments. Wendy testified
that because her monthly expenses exceed her monthly income, she withdraws
money from her savings to pay all her expenses. Wendy stated that to decrease
expenses, she selects less expensive items at restaurants and travels less frequently.
Yet, Wendy also testified that she was not willing to reduce her sizeable monthly
expenditures on her wardrobe and hair care. Wendy indicated that she has a
financial advisor but she does not have a monthly budget. Wendy indicated that she
has not applied for social security benefits.
G. Magistrate’s Decision
On March 10, 2025, the magistrate issued its decision granting
Michael’s motion to dismiss and finding that res judicata precluded Wendy’s
introduction of evidence about employer contributions to Michael’s retirement
account for purposes of calculating Tier II spousal support. The court’s ruling
rendered the portions of Wendy’s show-cause motions that sought Tier II spousalsupport obligations, including employer contributions to Michael’s 401(k) accounts,
moot. The magistrate ordered Michael to pay for four months of unpaid Tier I
spousal support sought under the December 2024 show-cause motion, and the
magistrate granted Michael’s motion to modify support and reduced his spousalsupport obligation to $0 per month.
H. Objections and Trial Court’s Decision
Both parties filed objections and supplemental objections to the
magistrate’s decision, and on September 23, 2025, the trial court filed a detailed
judgment entry that approved the magistrate’s decision. The trial court stated that
because Wendy could have raised in prior litigation her claims for employer perks
constituting Tier II spousal support, the argument was barred by res judicata. The
court also found that the matching employer contributions did not constitute
income for purposes of spousal support. The court further found that the magistrate
did not err when she (1) modified Michael’s spousal support to $0; (2) found
Michael no longer received a base salary or related Tier II earnings and, accordingly,
eliminated the Tier I and Tier II spousal-support structure; (3) eliminated the parties’ obligation to annually exchange financial information; and (4) determined
Michael’s nonpayment of four months of Tier I spousal support did not rise to the
level of contempt. This appeal stems from the court’s September 23, 2025 judgment
entry.
I. Appeal
On October 23, 2025, Wendy filed a notice of appeal and now
presents six assignments of error, verbatim:
Assignment of Error I: The trial court erred in granting Appellee’s
motion to dismiss and refusing to consider Appellant’s evidence in
support of her claims for additional Tier II support.
Assignment of Error II: The trial court erred in granting Appellee’s
motion to modify spousal support by reducing his spousal support
obligation to $0.00.
Assignment of Error III: The trial court erred in reducing Appellee’s
spousal support obligation to $0.00 when he is under obligation to pay
support based upon a two-tier obligation.
Assignment of Error IV: The trial court erred in terminating the
parties’ agreement to a two-tier spousal support obligation.
Assignment of Error V: The trial court erred in failing to grant
Appellant’s motions to show cause and motions for attorney fees
relating to the nonpayment of Tier II spousal support.
Assignment of Error VI: The trial court erred in failing to order that all
prior orders not modified shall remain orders of the court.
II. Legal Analysis
A. Res Judicata
In her first assignment of error, Wendy contends that the trial court
erred when it granted Michael’s motion to dismiss the portions of Wendy’s September 25, 2024 and December 31, 2024 show-cause motions (“show-cause
motions”) that related to Tier II earnings — including employer contributions to
Michael’s 401(k) plan — that the trial court determined were barred by res judicata
and, accordingly, were moot. The trial court found Wendy could have raised these
claims at the time of the divorce and during the initial post-decree proceedings. The
trial court also found that even if res judicata did not apply, the 401(k) contributions
did not constitute income.
The application of res judicata is a question of law subject to de novo
review. Dinks II Co. v. Chagrin Falls Village Council, 2005-Ohio-2317, ¶ 19 (8th
Dist.).
Res judicata incorporates claim preclusion and issue preclusion:
Claim preclusion holds that “[a] valid, final judgment[] on the merits
bars all subsequent actions based upon any claim arising out of the
transaction or occurrence that was the subject matter of the previous
action.” [Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 653 N.E.2d
226 (1995)], at syllabus. Issue preclusion, also known as collateral
estoppel, provides that “a fact or a point that was actually and directly
at issue in a previous action, and was passed upon and determined by
a court of competent jurisdiction, may not be drawn into question in a
subsequent action between the same parties or their privies, whether
the cause of action in the two actions be identical or different[.]” Fort
Frye Teachers Assn. v. State Emp. Relations Bd., 81 Ohio St.3d 392,
395, 692 N.E.2d 140 (1998). While claim preclusion precludes
relitigation of the same cause of action, issue preclusion precludes
relitigation of an issue that has been actually and necessarily litigated
and determined in a prior action. Id., citing Whitehead v. Gen. Tel. Co.,
20 Ohio St.2d 108, 112, 254 N.E.2d 10 (1969).
Lemons v. State, 2020-Ohio-5619, ¶ 35 (8th Dist.).
At issue in this case is collateral estoppel or issue preclusion.
To successfully assert collateral estoppel, a party must establish: (1) the
party against whom estoppel is sought was a party or in privity with a
party to the previous case; (2) there was a final judgment on the merits
in the previous case after a full and fair opportunity to litigate the issue;
(3) the issue must have been admitted or actually tried and decided and
must be necessary to the final judgment; and (4) the issue must have
been identical to the issue involved in the previous case.
Davet v. Mikhli, 2012-Ohio-1200, ¶ 11 (8th Dist.), citing Krahn v. Kinney, 43 Ohio
St.3d 103, 107 (1980).
Res judicata has 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. Mlakar v. Mlakar, 2013-Ohio-100, ¶ 12 (8th Dist.).
“Principles of res judicata apply both to issues that were actually litigated and
adjudicated in a divorce action and also to matters that could have been litigated and
adjudicated.” Manning v. Jusak, 2013-Ohio-4194, ¶ 7 (8th Dist.), citing Bean v.
Bean, 14 Ohio App.3d 358, 361 (12th Dist. 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.” Mlakar at ¶ 11, citing
State v. Saxon, 2006-Ohio-1245, ¶ 18. “In short, the doctrine of res judicata
prevents us from considering arguments that could and should have been raised
during earlier appeals.” Thiery v. Thiery, 2024-Ohio-2936, ¶ 20 (2d Dist.), citing
Chepp v. Chepp, 2011-Ohio-4451, ¶ 15 (2d Dist.).
We find the doctrine of res judicata is dispositive of Wendy’s first
assignment of error. Michael’s 401(k) account was in place at the time of the parties’ divorce. The account was classified as marital property, and Wendy received her
marital portion of the account under the divorce decree.
Michael testified that both he and his employer made contributions
to the 401(k) account at the time of the divorce and the portion of the account that
Wendy received included employer-paid contributions:
THE MAGISTRATE: Okay. At the time of the divorce, [Michael], this
was the — you had this retirement account [defense counsel] has given
us the statements on. . . . So this, you did have this retirement account
at the time of the divorce?
MICHAEL: Yes.
THE MAGISTRATE: Were you contributing into it at the time?
MICHAEL: I was.
THE MAGISTRATE: Was your employer contributing into it at the
time?
MICHAEL: To the best of my recollection, yes.
THE MAGISTRATE: Okay. And at the time of your divorce, you
divided this account, right, by way of a division of property?
MICHAEL: That’s correct.
THE MAGISTRATE: And the marital portion was paid out to
[Wendy]?
MICHAEL: Yes, it was.
THE MAGISTRATE: Do you believe to the best of your knowledge that
some of the monies paid to her included the employer contributions to
it?
MICHAEL: To the best of my knowledge, yes.
Tr. 23-25. Further, Michael testified that he did not have an employment contract
with Merit Brass but documentation existed that stated the employer contributed to
the 401(k) account. Michael did not recall if that documentation was provided
during the pendency of the divorce proceedings.
Wendy denied that at the time of the divorce she knew Michael’s
employer contributed to the 401(k) account. Wendy also denied receiving any
401(k) account statements at the time of the divorce and testified that it was not her
responsibility to obtain those statements:
THE MAGISTRATE: Did you have any knowledge at the time [of the
divorce] that the employer was matching [Michael’s] contributions?
WENDY: Absolutely not.
THE MAGISTRATE: Okay. Do you think you could have found that
out later?
WENDY: It wasn’t up to — I mean it wasn’t — I wasn’t receiving it. So,
it wasn’t — it wasn’t up to me. I was supposed to receive that portion.
I didn’t know about it. I had no clue.
THE MAGISTRATE: Okay. But at the time of the divorce, you knew of
the existence of this retirement account?
WENDY: Correct. And I thought I was entitled to half.
THE MAGISTRATE: That’s fine. Did you have statements at the time
of the divorce of these summaries? Did you ever see these?
WENDY: No. I never got any statements.
THE MAGISTRATE: Okay.
WENDY: I just received half of what was in his account.
THE MAGISTRATE: Okay. Okay. So nobody showed you [these
account statements]?
WENDY: No.
THE MAGISTRATE: No one got [these account statements] in
evidence?
WENDY: No. No.
THE MAGISTRATE: No one requested [these account statements]?
[These account statements were] not provided?
WENDY: No.
THE MAGISTRATE: Okay.
WENDY: Not to my knowledge, no.
Tr. 25-28. Wendy claims that she first learned about the employer contributions to
the 401(k) account from her brother-in-law, which prompted her to subpoena
related records from Merit Brass in October 2024 and the 401(k) account statements
in January 2025. Wendy also states in her appellant brief that Merit Brass “had
been paying matching contributions to [Michael’s] retirement account from the date
of the parties’ divorce forward.” Appellant’s brief, p. 17.
Michael and Wendy were represented by counsel in the divorce and
initial post-decree proceedings and are the same parties to this instant action. The
trial court’s January 4, 2016 divorce decree constituted a final judgment on the
merits of the divorce, and the initial post-decree proceedings related to employercontributions were finalized on October 28, 2024. The division of Michael’s 401(k)
account was part of the divorce decree, and classification of employer perks as Tier II obligations was addressed in the initial post-decree litigation. Wendy now attempts
to relitigate whether employer contributions to the 401(k) account qualify as Tier II
spousal-support obligations.
Wendy alleges that she first learned about Merit Brass’s 401(k)
contributions from her brother-in-law in 2024, and as a result the information
constituted a “newly discovered fact” not barred by res judicata. See Montgomery
v. Vargo, 2018-Ohio-742. ¶ 19 (8th Dist.) ( “A previously undiscovered claim arising
from newly discovered facts is not barred by the doctrine of res judicata.”). Wendy
also alleges that Michael concealed the employer contributions from her so that she
was not privy to the information until she obtained the account statements in
January 2025. While Michael contends his W-2 forms and pay stubs, which were
introduced at the initial post-decree proceedings, reflected Merit Brass’s
contributions to the 401(k) account, Wendy disputes this fact.
It is undisputed that Michael held the 401(k) account in 2016 and the
parties divided the account as marital property in their divorce. Further, Michael
testified that Metal Brass made contributions to the account in 2016 and
documentation existed in support of that arrangement although Michael was not
certain that the documentation was exchanged with Wendy. The parties litigated
employer perks that constituted Tier II spousal-support obligations in the initial
post-decree litigation. Based upon our review of the documents, we cannot agree
with Michael’s assertions that his W-2 forms and pay stubs reflected Merit Brass’s
contributions to the 401(k) account, but Wendy knew about the 401(k) account, agreed to divide the account in the divorce decree, and could have sought discovery
on the account at any time to obtain, at a minimum, the account statements.
Wendy’s failure to subpoena information related to the 401(k) agreement in 2016 or
during the initial post-decree litigation — a form of discovery that she pursued in
2024 and 2025 — does not demonstrate that Michael hid the contributions from
Wendy or that the contributions constituted newly discovered evidence.
Under the facts presented in this case, Wendy’s allegation that Merit
Brass’s contributions to the 401(k) account amounted to a Tier II spousal-support
obligation is barred by res judicata. See Dickens v. Bethlehem Baptist Church, 1994
Ohio App. LEXIS 4060, *5-6 (8th Dist. Sept. 15, 1994) (Whether the claims of breach
of contract or fraudulent misrepresentation could have been raised in a prior action
for negligence could “be resolved by determining whether the facts upon which the
new claims were based were discoverable at the time of the previous action.”).
For the foregoing reasons, res judicata precludes Wendy from
pursuing Tier II spousal-support obligations about which she knew or should have
known when this issue was previously litigated. Because the trial court’s application
of res judicata was not in error, we need not address the trial court’s alternative
theory that the employer’s contributions did not constitute income. Wendy’s first
assignment of error is overruled.
B. Reducing Spousal Support to $0
Wendy argues in her second assignment of error that the trial court
erred when it reduced Michael’s spousal-support obligation to $0 per month. Specifically, Wendy contends that modification was not reasonable nor necessary
because Michael’s testimony that he could not afford his spousal-support obligation
was not credible; the court did not consider Michael’s current wife’s income; and the
court should have imputed income to Michael based upon his available social
security benefits and annuity income.
“‘The award of spousal support lies within the sound discretion of the
trial court and will not be reversed absent an abuse of discretion.’” Hloska v. Hloska,
2015-Ohio-2153, ¶ 12 (8th Dist.), citing Holcomb v. Holcomb, 44 Ohio St.3d 128,
130 (1989).
Pursuant to the parties’ judgment entry of divorce and attached
separation agreement, the trial court retained jurisdiction to modify Michael’s
spousal-support obligation in the event a substantial change of circumstances
occurred. The trial court found that Michael’s retirement after 43 years of
employment constituted a substantial change of circumstances. After finding a
substantial change of circumstances, the trial court needed to consider the factors
enumerated in R.C. 3105.18(C)(1) and determine whether continued spousal
support was appropriate and reasonable. See Mills v. Mills, 2025-Ohio-452, ¶ 23
(8th Dist.), quoting Preseren v. Preseren, 2011-Ohio-5181, ¶ 12 (8th Dist.), citing
Calabrese v. Calabrese, 2007-Ohio-2760 (8th Dist.); Carnahan v. Carnahan, 118
Ohio App.3d 393, 398 (12th Dist. 1998) (“‘Once a trial court finds there is a change
in circumstances, the court must then determine whether spousal support is still
necessary, and if so, what amount is reasonable.’”).
A review of the record shows that the court considered the statutory
factors including income, age, physical and mental conditions, duration of the
marriage, and the parties’ retirement benefits. The evidence included tax
documents, Michael’s consulting agreement, income documents, payment history,
and retirement information. Michael testified about his new spouse’s income and
their shared living expenses. “We note that ‘[w]hile a new spouse’s income cannot
be considered in determining an obligor’s ability to pay spousal support, the court
may consider the fact that the obligor directly benefits from sharing living expenses
with his new wife.’” Mills at ¶ 25, quoting Preseren at ¶ 16, citing Feldman v.
Feldman, 2009-Ohio-4202 (8th Dist.); Manzella v. Manzella, 2005-Ohio-4519,
¶ 12 (12th Dist.), citing McNutt v. McNutt, 2005-Ohio-3752 (12th Dist.). The
testimony and evidence demonstrated that both parties have financial resources,
they both live off their savings and investments, and neither party receives social
security benefits. The record shows Wendy earned more in 2024 than Michael.
The magistrate assessed the application of each statutory factor, and
the magistrate found that the change in circumstances — Michael’s retirement —
rendered the Tier I and Tier II spousal-support structure no longer appropriate. The
magistrate further stated that even if the two-tiered spousal-support structure
continued, the lack of a base salary would result in no Tier II earnings. Michael’s
spousal-support obligation was modified to $0 per month pursuant to the following
reasoning that was adopted by the trial court:
Both [Michael] and [Wendy] could receive additional interest from the
other monies they have access to (inheritance, lawsuit proceeds,
investments, Social Security, etc.). The Court notes that neither party
has applied to receive their Social Security benefits.
It is clear from [Wendy’s] testimony and Affidavit of Income and
Expenses ([Wendy’s] Exhibit “A” whereby she lists and affirms
$13,123.23 in monthly expenses for one person) that she is accustomed
to a high quality of life in which she has not had to closely monitor her
spending. She testified that she likes “nice things” and intends to
maintain the quality of life she has grown accustomed to both during
and after her marriage. It is also evident that, despite [Wendy’s]
testimony that [Michael] is entitled to retire, [Wendy] believes
[Michael] remains under an obligation to fund said lifestyle. Despite
the steady stream of income available to her outside of her spousal
support, [Wendy] testified that she has not met with a financial planner
to manage her budget and plan for the remainder of her life. [Wendy]
demonstrates little fiscal responsibility and based on her testimony, is
under the notion that [Michael] should be obligated to pay spousal
support for several more years simply because she wants him to and
feels that [Michael] has a duty to. That is not the law. At this juncture,
[Michael] and [Wendy] have equal income and must manage their
expenses wisely.
[Michael] testified regarding his current expenses and which of those
his current spouse contributes towards. [Michael] testified that he is
attempting to be conscientious of his spending.
Based upon the parties’ current sources of income available to them
and the change in circumstance related to [Michael’s] retirement, the
motion to modify is granted, effective September 20, 2024. The Court
finds there has been a substantial change in circumstance warranting
the parties’ Tier I and Tier II structure inappropriate. Moreover, even
if the Tier I and Tier II structure were to be applied, [Michael] does not
currently have a base salary and therefore there can be no Tier II
earnings in addition to his base salary. The Court does not find there
to be any ambiguity in the parties’ divorce decree, despite [Wendy’s]
implication of same. The Court further finds that [Michael’s] spousal[-]support obligation is modified to $0.00 per month, effective
September 20, 2024.
March 10, 2025 magistrate’s decision.
Where the record evidences the trial court’s consideration of the
R.C. 3105.18(C)(1) factors, and the judgment contains sufficient details for a
reviewing court to establish that the support award is fair, equitable, and in
accordance with the law, the reviewing court will uphold the determination. La
Spisa v. La Spisa, 2023-Ohio-3467, ¶ 116 (8th Dist.). Here, the trial court
considered all the statutory factors and found it equitable to reduce Michael’s
spousal-support obligation to $0 per month. Based on the foregoing, we do not find
that the trial court abused its discretion and, accordingly, Wendy’s second
assignment of error is overruled.
C. Tier I and Tier II Spousal Support
For ease of discussion, we will address the third and fourth
assignments of error collectively. In her third assignment of error, Wendy argues
that the trial court was required to retain and enforce the portion of the parties’
separation agreement that specified payment of Tier I and Tier II spousal-support
obligations. Further, Wendy argues that Michael’s consulting income is comparable
to a base salary upon which Tier I spousal-support obligations can be calculated and
Michael’s obligation to pay Tier II spousal support is not dependent upon his receipt
of Tier I income. In her fourth assignment of error, Wendy argues that the trial court
erred when it found the two-tier spousal-support obligation inappropriate and
terminated the support structure.
The parties’ separation agreement did not identify specific terms that
would trigger a change in circumstances to support a modification of spousal support. Absent such terms, the court had to apply R.C. 3105.18(C)(1) and
3105.18(F) to determine whether a change in circumstances, which warranted a
modification in the spousal-support obligation, had occurred. Barry v. White,
2023-Ohio-1570, ¶ 26 (8th Dist.).
Conversely, Wendy proposes that under Alkire v. Alkire, 2021-Ohio186 (9th Dist.), R.C. 3105.18(F)(2) mandated the trial court to retain the Tier I and
Tier II spousal-support obligations because the parties voluntarily agreed to those
terms within the separation agreement. We do not agree. The Alkire Court, in
accordance with R.C. 3105.15(F)(2), had to follow the terms of the separation
agreement that specified the exact change in circumstances that would prompt a
modification of the husband’s spousal-support obligation. The instant separation
agreement provided no such restrictions. Thus, the trial court was not in error when
it applied the R.C. 3105.18(C)(1) factors and determined a change in circumstances
occurred that necessitated a modification of spousal support and found the Tier I
and Tier II structure was no longer appropriate. In other words, the trial court did
not need to maintain the same support structure if there was a change of
circumstances.
Additionally, Tier I spousal support was calculated on Michael’s base
salary and Tier II obligations were “in addition to Tier I spousal support” and
calculated as “37.825% of [Michael’s] earnings in excess of his base salary.” Jan. 4,
2016 judgment entry of divorce. At the time of the divorce, Michael received both a
base salary and additional earnings from Merit Brass. Following his retirement, he no longer received a base salary, and we cannot reasonably interpret his current
hourly rate and commissions — that varied each week — as comparable to a base
salary subject to Tier I spousal-support obligations. Further, where the purpose of
Tier II spousal support was to share with Wendy a portion of any earnings earned in
excess of the Tier I earnings, we cannot agree that Michael may be subject to Tier II
spousal-support obligations if he is not earning Tier I earnings. Absent Tier I
earnings, Tier II spousal support no longer applies.
“The goal of spousal support is to reach an equitable result,” and
“there is no set mathematical formula to reach this goal.” La Spisa, 2023-Ohio-3467
at ¶ 91, quoting Hloska, 2015-Ohio-2153 at ¶ 11, citing Kaechele, 35 Ohio St.3d 93,
96 (1988). The trial court may eliminate the spousal-support structure if a change
of circumstances occurs and the resulting award, which is based upon the statutory
factors, is fair and equitable. The court found a change of circumstances — Michael’s
retirement — and determined that the R.C. 3105.18(C)(1) factors indicated a
modification of support was appropriate and reasonable. Both Wendy and Michael
had income sources from which they could support themselves, and Wendy earned
more than Michael in 2024. Thus, the trial court’s modification of spousal support
to $0 was not an abuse of discretion. Accordingly, Wendy’s third and fourth
assigned errors are overruled.
D. Contempt
Wendy’s fifth assignment of error argues that the court should have
awarded her attorney fees in conjunction with the court’s granting her four months of spousal support. Essentially, Wendy argues that the trial court abused its
discretion when it failed to find Michael in contempt.
“We review a trial court’s decision on contempt under an abuse of
discretion standard.” Levy v. Levy, 2014-Ohio-2650, ¶ 38 (8th Dist.), citing
Kapadia v. Kapadia, 2011-Ohio-2255, ¶ 22 (8th Dist.), citing In re Contempt of
Modic, 2011-Ohio-5396, ¶ 7 (8th Dist.).
Michael initially informed Wendy, through counsel, that he would
remit spousal support starting in May 2024, but he subsequently rescinded his offer.
Michael then relied on comments allegedly made by the magistrate indicating he
need not make spousal-support payments because his consulting income was not
subject to the two-tiered spousal-support structure. The trial court ordered Michael
to pay for four months of spousal support — from May 2024, when Michael
submitted his last spousal-support payment, until September 2024, when Michael
filed his motion to modify spousal support — but denied associated attorney fees
because Michael’s behavior did not rise to a contemptuous level.
“In the domestic relations arena, judges are generally given broad
discretion in the fashioning of equitable relief under the specific facts and
circumstances of each case.” Levy at ¶ 42, citing Lemke v. Lemke, 2011-Ohio-457,
¶ 24 (8th Dist.). “The purpose of civil contempt proceedings is to secure the dignity
of the courts and the uninterrupted and unimpeded administration of justice.” Pugh
v. Pugh, 15 Ohio St. 3d 136, 140 (1984), quoting Windham Bank v. Tomaszczyk, 27
Ohio St. 2d 55 (1971), paragraph two of the syllabus.
Pursuant to the domestic court’s broad discretion on this topic, we
cannot find that the court abused its discretion when it determined Michael’s failure
to pay four months of spousal support did not amount to contempt. See Levy, 2014-Ohio-2650 at ¶ 36-43 (8th Dist.) (Even though husband unilaterally reduced
spousal-support payments, the trial court did not abuse its discretion when it
declined to find husband in contempt.). Thus, Wendy’s fifth assignment of error is
overruled.
E. Prior Orders
In her sixth assignment of error, Wendy contends that the trial court
erred when it failed to require the parties to annually exchange their paystubs, W-2
forms, and 1099 forms. Wendy further contends that absent such a requirement,
she will be forced to file a motion to modify “whenever she only suspects [Michael]
may be earning greater income.” Appellant’s brief, p. 28.
The trial court was permitted to modify the parties’ spousal-support
structure and, in doing so, the court found it no longer applicable nor necessary for
the parties to annually exchange their financial information. Such a decision is
within the court’s discretion and there is no basis for us to find the decision
amounted to an abuse of discretion. Thus, Wendy’s sixth assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
common pleas court, 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.
TIMOTHY W. CLARY, JUDGE
MICHELLE J. SHEEHAN, A.J., and
EILEEN A. GALLAGHER, J., CONCUR