COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72870 ROBERT J. SAFRANEK : : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND ANN M. SAFRANEK : OPINION : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT : JULY 30, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court, Division of Domestic Relations Case No. D-206531 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Carl A. Murway, Esq. Kelley, McCann & Livingstone 35th Floor - BP America Bldg. 200 Public Square Cleveland, Ohio 44114-2302 For defendant-appellant: Jonathan A. Rich, Esq. Zashin & Rich 55 Public Square Suite 1490 Cleveland, Ohio 44113-1901 MICHAEL J. CORRIGAN, J.: Ann M. Safranek, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic -2- Relations Division, Case No. D-206531, in which the trial court granted Robert J. Safranek's, plaintiff-appellee's, motion to modify spousal support and dismissed defendant-appellant's motion to show cause for failure to perfect service. Defendant-appellant assigns four errors for this court's review. Defendant-appellant's appeal is not well taken. The parties were divorced on June 18, 1992, ending a twenty- seven year marriage. Four children were born as issue of this marriage, the youngest of whom was still a minor at the time of the divorce. Plaintiff-appellee was ordered to pay $569.93 per month in child support for the remaining minor child and $1,530.00 per month spousal support, that amount to increase to $2,040.00 per month upon the emancipation of the minor child. The parties were further ordered to sell the two houses they owned jointly and apply the proceeds to any marital debt. The remaining balance, if any, was to be divided equally between the parties. Numerous post-decree motions were filed including motions to show cause regarding defendant-appellant's continued failure to sell her home as ordered by the trial court, a motion to modify support, motions for attorney fees and a motion for relief from judgment. Defendant-appellant was eventually held in contempt of court for refusing to cooperate in the sale of her home. At the time of the divorce, plaintiff-appellee was employed locally by Weldinghouse, Inc., as a commissioned industrial salesman of welding supplies. He also owned a percentage of the company. Plaintiff-appellee's salary was approximately $50,000.00 -3- per year. Defendant-appellant was previously employed as a legal secretary but quit her employment in 1963 in order to raise the parties' children and manage the household. In 1993, plaintiff-appellee terminated his association with Weldinghouse, Inc. and relocated to New York, New York where he accepted employment as a salesman with a New Jersey company called Compressed Gas Incorporated. Although plaintiff-appellee earned approximatelythe same salary, the high cost of living in New York effectively reduced his actual income. On November 16, 1993, the trial court reduced plaintiff-appellee's monthly spousal support obligation to $1,500.00 based upon a change in circumstances that was unforeseeable at the time of the divorce, i.e. plaintiff- appellee's relocation. In June, 1994, plaintiff-appellee was terminated from his employment with Compressed Gas Incorporated. He then received unemployment benefits from the state of New Jersey until February, 1995. Plaintiff-appellee maintained that he sent 50% of his unemployment check to defendant-appellant during this time period. After his unemployment benefits terminated, plaintiff-appellee filed a motion to modify spousal support on February 22, 1995. In the summer of 1994, prior to filing the motion, plaintiff- appellee started his own business called Liberty Welding Supply, Inc. Plaintiff-appellee maintained that the yearly gross profit from the business was approximately $42,000.00 per year which was sufficient to cover all expenses associated with operating the business. Plaintiff-appellee maintained further that he was unable -4- to derive any actual income from the business. For this reason, plaintiff-appellee requested a reduction in spousal support based upon his lack of any significant income. On February 1, 1995, defendant-appellant filed a motion to show cause in which she maintained that plaintiff-appellee had failed to pay spousal support in a timely manner. Defendant- appellant requested service of the motion by certified mail at an address in Parma, Ohio as well as an address in New York City. Both attempts at service were returned unclaimed. No additional attempts at service were made. Both motions came on for hearing before a magistrate on November 17, 1995. The hearing concluded on May 24, 1996. At the conclusion of the hearing, plaintiff-appellee moved to dismiss defendant-appellant's motion to show cause for lack of service. On October 30, 1996, the magistrate issued a decision finding that service on the motion to show cause was perfected and plaintiff- appellee was in contempt for failure to pay spousal support in a timely manner. The magistrate denied plaintiff-appellee's motion to reduce spousal support. On December 20, 1996, plaintiff-appellee filed objections to the report and decision of the magistrate as well as a transcript of proceedings. On June 27, 1997, the trial court adopted the magistrate's decision, however, the decision was modified in that plaintiff-appellee's spousal support obligation was reduced to $1,000.00 per month and defendant-appellant's motion to show cause was dismissed for failure to obtain proper service. -5- On July 27, 1997, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. Defendant-appellant's first assignment of error states: I. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT GRANTED THE APPELLEE'S MOTION TO MODIFY SPOUSAL SUPPORT AS THERE WAS NO CHANGE OF CIRCUMSTANCES. Defendant-appellant's second assignment of error states: II. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT GRANTED THE APPELLEE'S MOTION TO MODIFY SPOUSAL SUPPORT AND ORDERED THE APPELLEE TO PAY SPOUSAL SUPPORT IN THE SUM OF ONE THOUSAND DOLLARS ($1,000.00) PER MONTH WITHOUT SETTING FORTH THE BASIS FOR ITS DECISION. Defendant-appellant's third assignment of error states: III. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT GRANTED THE APPELLEE'S MOTION TO MODIFY SPOUSAL SUPPORT AND ORDERED THE APPELLEE TO PAY SPOUSAL SUPPORT IN THE SUM OF ONE THOUSAND DOLLARS ($1,000.00) PER MONTH. Having a common basis in both law and fact, this court shall consider defendant-appellant's first, second and third assignments of error simultaneously. Defendant-appellant argues, through her first, second and third assignments of error, that the trial court erred and abused its discretion by granting plaintiff-appellee's motion to modify spousal support. Specifically, defendant-appellant maintains that plaintiff-appellee failed to demonstrate a substantial change in circumstances to justify a $500.00 per month reduction in spousal support and any change in circumstances that did actually occur was a voluntary change in employment by plaintiff-appellee. Defendant- -6- appellant maintains further that the trial court failed to adequately set forth the basis for its modification of the decision of the magistrate who had determined that a reduction in spousal support was not warranted under the present circumstances. It is defendant-appellant's position that spousal support of $1,000.00 per month is unreasonable, arbitrary and unconscionable since, in this instance, the spousal support was so low that defendant- appellant could not afford to live on the reduced amount. A trial court is generally afforded wide latitude in deciding spousal support issues. Bolinger v. Bolinger (1990), 49 Ohio St.3d 120, 551 N.E.2d 157; Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. Where modification of a spousal support award is requested, the threshold question is whether the trial court retained jurisdiction to modify the provisions of its order and whether the circumstances of a party have changed. Wolding v. Wolding (1994), 82 Ohio App.3d 235, 239, 611 N.E.2d 860. R.C. 3105.18(E) states that the court may modify the amount or terms of a spousal support order upon a determination that the circumstances of either party have changed. A change of circumstances includes, but is not limited to, *** any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses. See R.C. 3105.18(F). An appellate court reviews the modification of spousal support under an abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 144; Shanley v. Shanley (1989), 46 Ohio App.3d 100; Kucmanic v. Kucmanic (May 8, 1997), Cuyahoga App. No.71104, -7- unreported. An abuse of discretion connotes more than an error of law or judgment, it implies that the trial court's attitude was unreasonable,arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140; Frederick v. Frederick (Feb. 26, 1998), Cuyahoga App. No. 72156, unreported. Absent such a showing, the trial court's judgment will be affirmed. Masters v. Masters (1994), 69 Ohio St.3d 83, 630 N.E.2d 665. When applying the abuse of discretion standard of review, an appellate court is not permitted to substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 559 N.E.2d 1301. When imposing a spousal support order initially, the domestic relations court's order must show that it considered all the factors enumerated in R.C. 3105.18(C)(1). Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, paragraph one of the syllabus. However, when modifying a spousal support order, the domestic relations court must determine whether there has been a change in circumstances of either party pursuant to R.C. 3105.18(E). If a change of circumstances is found to exist, the trial court must determine whether spousal support is still necessary and, if so, in what amount. Binghazn v. Binghazn (1991), 9 Ohio App.3d 191. The domestic relations court should set forth the basis for its decision with sufficient detail to allow proper appellate review. Graham v. Graham (1994), 98 Ohio App.3d 393, 399-400. As a practical matter, however, a change in circumstances for one spouse -8- as found under R.C. 3105.18(F) will not generally affect the otherwise static factors contained in R.C. 3105.18(E). Kucmanic, supra. In the case herein, evidence was presented during the hearing on plaintiff-appellee's motion to modify spousal support to demonstrate a substantial change in circumstances regarding the income of plaintiff-appellee. In June of 1994, plaintiff-appellee was terminated from his employment with Compressed Gas, where he was earning approximately $55,000.00 per year. At that point, plaintiff-appellee began receiving approximately $600.00 per month in unemployment compensation from the State of New Jersey. These payments ended in February 1995. The evidence demonstrated further that plaintiff-appellee started a welding supply business in New Jersey soon after receiving unemployment compensation. While the business has been marginally successful in its first year of operation in that it has made enough money to pay the financial obligations, plaintiff-appellee testified that it was not yet making sufficient profit to enable him to take any salary out of the business. Plaintiff-appellee testified further that any sales position that he could have obtained in New Jersey would only pay approximately $25,000.00 to $30,000.00 per year given the availability of numerous salesmen in the area. Clearly, a review of the record in its entirety demonstrates that the trial court did not abuse its discretion in determining that a substantial change in circumstances did occur necessitating a reduction in plaintiff-appellee's spousal support obligation nor -9- was the decision arbitrary, unreasonable or unconscionable in light of plaintiff-appellee's present earning capacity. Should plaintiff-appellee's business become more successful in the near future, defendant-appellant has the option of requesting that the trial court increase her monthly spousal support payment proportionally at the appropriate time. Contrary to defendant- appellant's position, plaintiff-appellee's reduction in income did not constitute a voluntary reduction given the fact that plaintiff- appellee was involuntarily terminated from his previous employment and was unable to obtain a similar position at a similar salary. Finally, the trial court did not, as defendant-appellant maintains, abuse its discretion by failing to set forth the basis for its decision. A review of the record in its entirety with respect to the trial court's award of spousal support adequately indicates the basis for the underlying award in sufficient detail to enable the appellate court to determine whether the award is fair equitable and in accordance with the law. Carman v. Carman (1996), 109 Ohio App.3d 698, 704; Nelson v. Nimylowycz (July 24, 1995), Cuyahoga App. No. 67901, unreported. For the foregoing reasons, defendant-appellant's first, second and third assignments of error are not well taken. Defendant-appellant's fourth and final assignment of error states: IV. THE TRIAL COURT ERRED WHEN IT DISMISSED THE APPELLANT'S MOTION TO SHOW CAUSE FOR FAILURE OF SERVICE. -10- Defendant-appellant argues, through her final assignment of error, that the trial court improperly dismissed her motion to show cause for failure of service. Defendant-appellant maintains that she actually obtained service upon plaintiff-appellee by personally delivering a copy of the motion to plaintiff-appellee's Parma, Ohio address where it was received by plaintiff-appellee's brother, a person at an address reasonably calculated to give plaintiff- appellee notice of the pending motion pursuant to Civ.R. 4.1. A review of the record, however, demonstrates that defendant- appellant filed her motion to show cause on February 1, 1995. That day, defendant-appellant requested service on plaintiff-appellee via certified mail at 6996 Edgecliff Drive, Parma, Ohio. On February 16, 1995, defendant-appellant requested service on plaintiff-appellee via certified mail at 55 Park Terrace, New York, New York. Both attempts at service by certified mail were returned unclaimed. The record fails to reflect any further attempts at service of the motion to show cause by defendant-appellant. Civ.R. 4.6(D) provides that when a certified mail receipt is returned with an endorsement marked unclaimed, service is not properly obtained unless the attorney of record or the serving party files a written request for service by ordinary mail. See, United Home Fed. v. Rhonehouse (1991), 76 Ohio App.3d 115, 124, 601 N.E.2d 138, 143; Home Bank, FSB v. Pauer (February 19, 1998), Cuyahoga App. No. 72242, unreported. Since service by regular mail was not requested by defendant-appellant in this instance, the trial court was left with no alternative but to find that service -11- had not been perfected in accordance with Civ.R. 4 to 4.6 and Civ.R. 75(I). Defendant-appellant's fourth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -12- It is ordered that appellee recover of appellant 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 Common Pleas Court 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. JAMES M. PORTER, PRESIDING JUDGE LEO M. SPELLACY, J., CONCUR JUDGE MICHAEL J. CORRIGAN N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .