[Cite as Lowman v. Nelligan, 2026-Ohio-3209.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
MARK W. LOWMAN C.A. No. 31669
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KATHLEEN A. NELLIGAN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. DR-2020-11-2832
DECISION AND JOURNAL ENTRY
Dated: August 19, 2026
SUTTON, Judge.
{¶1} Plaintiff-Appellant Mark W. Lowman appeals the judgment of the Summit County
Court of Common Pleas, Domestic Relations Division. For the reasons that follow, this Court
affirms in part and reverses in part.
I.
Relevant Background Information
{¶2} Mr. Lowman and Defendant-Appellee Kathleen A Nelligan were married on
October 15, 1988. After a legal separation, Mr. Lowman filed a complaint for divorce and the
marriage was terminated by a decree of divorce on November 9, 2021. The decree incorporated
the parties’ separation agreement which had been entered into by the parties in 2016, in connection
with their legal separation. In the divorce decree, Mr. Lowman was ordered to pay Ms. Nelligan
$6,250.00 per month in spousal support and the trial court expressly reserved jurisdiction over the
duration, termination, and amount of spousal support pursuant to the parties’ separation agreement.
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The separation agreement also provided, “[Mr. Lowman’s] retirement shall constitute a change of
circumstances” for purposes of modifying or terminating spousal support.
{¶3} On December 28, 2021, Mr. Lowman moved to modify or terminate his spousal
support obligation on the basis of his retirement. That same month, Mr. Lowman also stopped
paying his spousal support obligation to Ms. Nelligan. On November 17, 2022, a hearing on Mr.
Lowman’s motion was held before a magistrate. The facts are largely undisputed. Ms. Nelligan
suffers from a traumatic brain injury. Her medical condition, expenses, assets, and liabilities had
remained the same since the decree of divorce was entered. Mr. Lowman’s circumstances,
however, had changed. Specifically, his income was substantially less than when he had signed
the separation agreement in 2016. The separation agreement, which set forth Mr. Lowman’s
$6,250.00 spousal support obligation, was incorporated into the 2021 divorce decree.
{¶4} In a July 5, 2023 magistrate’s decision, the magistrate terminated Mr. Lowman’s
spousal support obligation. Ms. Nelligan filed objections to the magistrate’s decision. The trial
court sustained Ms. Nelligan’s objection concerning the termination of spousal support, finding
that a modification of spousal support rather than termination was appropriate. The trial court then
modified Mr. Lowman’s monthly spousal support obligation from $6,250.00 to $2,000.00
retroactive to December 28, 2021, the date Mr. Lowman filed his motion to modify or terminate
spousal support. In doing so, the trial court took into consideration that Mr. Lowman’s income
was still substantially higher than Ms. Nelligan’s, that Mr. Lowman receives monthly social
security, pension, and annuity payments totaling $4,721.00, and Ms. Nelligan receives a pension
in the amount of $592.00 per month. The trial court also took into consideration Mr. Lowman’s
substantially reduced income, from over $150,000.00 per year when spousal support was originally
calculated, to $56,652.00 per year. The trial court also stated that Ms. Nelligan suffered from a
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traumatic brain injury that prevents her from being employed. The record also shows that Ms.
Nelligan is unable to work as a result of her brain injury and historically did not work outside of
the home during the marriage. Citing the substantial difference that still exists between the parties’
incomes, the trial court found spousal support was still appropriate, especially given the length of
the parties’ marriage. The trial court further stated, “[t]he [c]ourt shall retain jurisdiction to modify
the amount of spousal support but NOT the duration of spousal support[,]” and [s]pousal support
shall terminate upon the death of either party or the remarriage of [Ms. Nelligan].” (Emphasis in
original).
{¶5} Mr. Lowman has appealed, raising four assignments of error for our review. We
have grouped some assignments of error to facilitate our analysis.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY
SUSTAINING [MS. NELLIGAN’S] OBJECTION AND MODIFYING,
RATHER THAN TERMINATING, SPOUSAL SUPPORT, DESPITE
FINDING NO ERROR OF LAW IN THE MAGISTRATE’S DECISION,
ACKNOWLEDGING THE MAGISTRATE’S JURISDICTION, AND
RECOGNIZING THE PARTIES’ STIPULATED CHANGE OF
CIRCUMSTANCES.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED
CONTRARY TO R.C. 3105.18 AND CIV.R. 53(D)(4)(d) BY SUSTAINING
[MS. NELLIGAN’S] OBJECTION AND MODIFYING, RATHER THAN
TERMINATING, SPOUSAL SUPPORT WITHOUT COMPETENT
EVIDENCE OR PROPER CONSIDERATION OF THE PARTIES’ ASSETS
AND [MS. NELLIGAN’S] NEED.
{¶6} In his first and third assignments of error, Mr. Lowman argues the trial court abused
its discretion by sustaining Ms. Nelligan’s objection to the magistrate’s decision when it modified
rather than terminated his spousal support obligation. “This Court reviews a trial court’s action
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with respect to a magistrate’s decision for an abuse of discretion. In so doing, we consider the trial
court’s action with reference to the nature of the underlying matter.” (Internal citations omitted.)
Foster v. Foster, 2010-Ohio-4655, ¶ 6 (9th Dist.). An abuse of discretion means more than an
error of judgment; it implies that the trial court’s attitude was arbitrary, unconscionable, or
unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Moreover, it is well settled
that the trial court is vested with broad discretion over matters of spousal support. Poitinger v.
Poitinger, 2005-Ohio-2680, ¶ 7 (9th Dist.). “This Court reviews a trial court's award of spousal
support under an abuse of discretion standard.” Doubler v. Doubler, 2023-Ohio-393, ¶ 14 (9th
Dist.).
{¶7} The material facts here do not appear to be in dispute. The parties agreed that Mr.
Lowman’s retirement would constitute a change of circumstances for purposes of modifying
spousal support. Section 5.03 of the separation agreement provides:
[s]aid spousal support obligation shall be modifiable and the [c]ourt shall retain
jurisdiction over the issue of spousal support (duration, termination, and amount).
Husband’s retirement shall constitute a change of circumstances.
(Emphasis in original). R.C. 3105.18(E) provides in relevant part:
if a continuing order for periodic payments of money as spousal support is entered
in a divorce or dissolution of marriage action that is determined on or after January
1, 1991, the court that enters the decree of divorce or dissolution of marriage does
not have jurisdiction to modify the amount or terms of the alimony or spousal
support unless the court determines that the circumstances of either party have
changed and unless one of the following applies:
(1) In the case of a divorce, the decree or a separation agreement of the parties to
the divorce that is incorporated into the decree contains a provision specifically
authorizing the court to modify the amount or terms of alimony or spousal support.
{¶8} Mr. Lowman’s income has changed, but Ms. Nelligan’s physical condition,
income, assets, and debts have remained the same since the date of the divorce decree. The parties
did not agree in their separation agreement that Mr. Lowman’s spousal support obligation would
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terminate upon his retirement. They agreed that his retirement constituted a change of
circumstances, which allowed the trial court to consider whether terminating or modifying spousal
support was appropriate and reasonable, and to determine the nature, amount, terms of payment,
and duration of spousal support. See R.C. 3105.18(C)(1).
{¶9} To determine whether continued spousal support is appropriate and reasonable, the
trial court must consider the factors set forth in R.C. 3105.18(C)(1). Here, the trial court stated in
its decision on Ms. Nelligan’s objections to the magistrate’s decision that it took into consideration
the terms of the separation agreement, the findings of the magistrate, the testimony of the parties,
and the factors set forth in R.C. 3105.18, which provides in relevant part:
(C)(1) In determining whether spousal support is appropriate and reasonable, and
in determining the nature, amount, and terms of payment, and duration of spousal
support, which is payable either in gross or in installments, the court shall consider
all of the following factors:
(a) The income of the parties, from all sources, including, but not limited to,
income derived from property divided, disbursed, or distributed under
section 3105.171 of the Revised Code;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional conditions of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(g) The standard of living of the parties established during the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not limited to any
court-ordered payments by the parties;
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(j) The contribution of each party to the education, training, or earning ability of
the other party, including, but not limited to, any party's contribution to the
acquisition of a professional degree of the other party;
(l) The tax consequences, for each party, of an award of spousal support;
(n) Any other factor that the court expressly finds to be relevant and equitable.
While the trial court’s consideration of each of the factors set forth in R.C. 3105.18(C)(1) is
mandatory, “[t]he trial court is not required to comment on each statutory factor; rather, the record
must only show that the court considered the statutory factors when making its award.” Choi v.
Choi, 2018-Ohio-725, ¶ 9 (9th Dist.), quoting Manos v. Manos, 2015-Ohio-2932, ¶ 13 (9th Dist.).
{¶10} Here, the trial court stated it considered the statutory factors and discussed some of
the factors relevant to the parties’ current circumstances when modifying Mr. Lowman’s spousal
support obligation rather than terminating it. These factors included the parties’ incomes, assets,
and Ms. Nelligan’s brain injury. The trial court also took into consideration Mr. Lowman’s
substantially reduced income after his retirement and the still substantial difference in the relative
incomes of the parties. The record also shows that Mr. Lowman is older than Ms. Nelligan by
approximately 11 ½ years, that Ms. Nelligan is not yet age-eligible for social security retirement
benefits, and Mr. Lowman is no longer providing her health insurance.
{¶11} Mr. Lowman also argues the trial court abused its discretion by sustaining Ms.
Nelligan’s objection without finding that the magistrate committed an error of fact or law.
However, when the trial court reviewed the magistrate’s decision to terminate spousal support
together with the statutory factors, the trial court found that a modification, not termination, was
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appropriate. Inherent within the trial court’s decision is a determination that the magistrate did not
properly consider the relevant statutory factors and therefore committed an error.
{¶12} We have reviewed the record in this matter, including the testimony and exhibits
admitted at the November 17, 2022 hearing on Mr. Lowman’s motion to modify or terminate
spousal support, and we cannot say the trial court abused its discretion in sustaining Ms. Nelligan’s
objection to the magistrate’s decision concerning the termination of spousal support nor can we
say the trial court abused its discretion in modifying Mr. Lowman’s spousal support obligation to
$2,000.00 per month instead of terminating his spousal support obligation altogether.
{¶13} Accordingly, Mr. Lowman’s first and third assignments of error are overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
MAKING ITS MODIFICATION OF SPOUSAL SUPPORT
RETROACTIVE TO DECEMBER 28, 2021, THEREBY CREATING
APPROXIMATELY $88,000 IN ARREARS WITHOUT ANY FINDING OF
ABILITY TO PAY OR BASIS FOR RETROACTIVITY.
{¶14} In his second assignment of error, Mr. Lowman argues the trial court abused its
discretion in making its modification of spousal support retroactive to December 28, 2021, and
creating a $88,000.00 arrearage amount. The magistrate found, “[Mr. Lowman] stopped paying
his monthly spousal support of $6,250.00 [in] December 2021.” Mr. Lowman did not object to
this finding and does not appear to dispute this fact. Thus, the arrearage was created by Mr.
Lowman’s failure to pay spousal support as ordered. The arrearage would have actually been more
had the trial court not lowered Mr. Lowman’s monthly spousal support payment to $2,000.00
instead of the $6,250.00 originally ordered.
{¶15} Nevertheless, Mr. Lowman argues the trial court was required to make an explicit
“ability-to-pay” finding before determining that Mr. Lowman owed an $88,000.00 arrearage and
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cites our case Johns v. Johns, 2009-Ohio-5798 (9th Dist.) in support of this argument. In Johns,
the “ability-to-pay” issue was addressed in the context of whether the appellant was in contempt
for failing to pay his spousal support obligation. Id. at ¶ 17. We determined in that case the trial
court did not err in finding the appellant in contempt because the appellant’s defense of
“impossibility to pay” was without merit. Id. at ¶ 19. The case before us does not involve a
contempt finding. Therefore, Mr. Lowman’s reliance on Johns for this argument is misplaced.
{¶16} Mr. Lowman also argues that the trial court did not make the findings required for
modification of spousal support and therefore the $88,000.00 arrearage must be vacated and cites
Johns and Mandelbaum v. Mandelbaum, 2009-Ohio-1222, in support of this argument. Those
cases concerned whether the trial court could modify spousal support in the absence of findings
pursuant to R.C. 3105.18(F) that a substantial change in circumstances had occurred and the
change was not contemplated by the parties at the time of the divorce decree. Mandelbaum at
paragraph two of the syllabus, Johns at ¶ 9-10. Those findings are not at issue in this case. Rather,
Mr. Lowman’s arguments here concern the factors set forth in R.C. 3105.18(C)(1). We have
determined in our resolution of Mr. Lowman’s first and third assignments of error that the record
supports that the trial court considered the required factors pursuant to R.C. 3105.18(C) when it
modified Mr. Lowman’s spousal support obligation. Therefore, the calculation of the $88,000.00
arrearage amount is not in error.
{¶17} Accordingly, Mr. Lowman’s second assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AND
ERRED BY UNILATERALLY ALTERING THE JURISDICTIONAL
RESERVATION OF THE PARTIES’ DECREE, EFFECTIVELY
ELIMINATING THE COURT’S AUTHORITY TO TERMINATE
SPOUSAL SUPPORT CONTRARY TO THE EXPRESS TERMS OF THE
SEPARATION AGREEMENT AND R.C. 3105.18(E).
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{¶18} In his fourth assignment of error, Mr. Lowman argues the trial court erred by
altering the parties’ express jurisdictional reservation in the separation agreement. The parties had
agreed pursuant to Section 5.3 of their separation agreement that the trial court retained jurisdiction
over the duration, termination, and amount of spousal support, but the trial court changed that
reservation of jurisdiction to the amount of spousal support, but not the duration. At oral argument,
counsel for Ms. Nelligan conceded that the trial court erred in altering the jurisdictional reservation
to which the parties had agreed.
{¶19} Accordingly, Mr. Lowman’s fourth assignment of error is sustained.
III.
{¶20} For the forgoing reasons, Mr. Lowman’s first, second, and third assignments of
error are overruled. Mr. Lowman’s fourth assignment of error is sustained. The judgment of the
Summit County Court of Common Pleas, Domestic Relations Division, is affirmed in part,
reversed in part, and remanded for proceedings consistent with this decision.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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
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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 equally to both parties.
BETTY SUTTON
FOR THE COURT
FLAGG LANZINGER, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
NICHOLAS KLYMENKO, Attorney at Law, for Appellant.
CAROLYN MARKS, Attorney at Law, for Appellee.