COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73036 PATRICIA A. DUNBAR : : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : MANLY DUNBAR : OPINION : Defendant-Appellant : Date of Announcement of Decision: JULY 30, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-212336 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: JUANITA BRYANT, ESQ. 3675 Runnymeade Blvd. Cleveland Hts., Ohio 44121 For Defendant-Appellant: VICKI LYNN WARD, ESQ. 1367 East 6th Street Suite 400 Cleveland, Ohio 44114 -2- JAMES M. PORTER, P.J.: Defendant-appellant Manly Dunbar appeals from an order of the Domestic Relations Court which increased defendant's monthly spousal support from $300 to $500. Defendant contends the court retained jurisdiction to modify spousal support only in the event plaintiff was suffering from multiple sclerosis (MS) and the evidence does not support the modification. We find no error and affirm the increased award of spousal support. The wife sought divorce from her husband after 21 years of marriage. One child was born during the marriage and was emancipated at the time of the divorce. Upon the initial divorce decree, plaintiff was awarded $100 per month commencing January 1, 1993 for a four year period or until either party's death or plaintiff's marriage or cohabitation and commencing January 1, 1997, $300 per month for a four year period. On March 26, 1996, plaintiff filed a motion to modify spousal support with an affidavit that alleged that the court retained jurisdiction in the event plaintiff established the presence of multiple sclerosis. Plaintiff attached a three-line letter from Dr. Hadley S. Morgenstern-Clarren stating that the plaintiff was under his general medical care and that she was totally and permanently disabled and unable to work because of multiple sclerosis. The defendant deposed Dr. Morgenstern-Clarren on December 12, 1996 in preparation for the defense of the motion. The parties -3- stipulated to the admission of the transcript of the doctor into evidence on the modification hearing. On direct examination, Dr. Morgenstern-Clarren testified at pages 11-13 of his deposition as follows: Q. What was the conclusion you reached at that time, Doctor? A. The conclusion that I reached at that time, is that even with repair of the right ankle tendon problem, she was also completely and permanently disabled on the basis of M.S. alone. Q. Doctor, do you have an opinion with a reasonable medical certainty to say whether or not she was employable at that time? A. I believe she could not have been employed at that time. Q. And can you tell us, Doctor, whether or not your opinion is based upon your belief as to her right ankle or as to her multiple sclerosis or both. A. At that time it was based on her multiple sclerosis. Q. Doctor, do you have an opinion with reasonable medical certainty as to whether or not that condition still exists with respect to her multiple sclerosis? A. Yes. M.S. is a condition which is permanent and for life, therefore, I can conclude accurately that this is a permanent condition for her. Q. Do you have an opinion with reasonable medical certainty as to whether or not that condition will deteriorate? A. The natural history of M.S. is always to deteriorate over time in an irregular fashion, in other words, M.S. is a disease of attacks over a period of years, each one leaving new neurologic damage. -4- So, based on the natural history of M.S. it is correct to conclude that Ms. Dunbar will have progression over time. Q. And, Doctor, do you have an opinion with reasonable medical certainty as to whether or not she would be able to maintain herself and support herself? A. I think based on what we've just stated she will not be able to maintain herself because she is totally disabled now and will remain so in the future. On cross-examination of the doctor by the defense, he conceded that he did not make the diagnosis of multiple sclerosis, but relied on the opinions of a neurologist. He further stated that he had no reason to question the diagnosis as the plaintiff's symptoms established an entire picture of M.S. The doctor had not seen plaintiff since 1996 when he last treated her in July 1995 for an ankle injury, for which he prescribed a muscle relaxant. The matter went to hearing before the magistrate on December 13, 1996. Notwithstanding substantial evidence pro and con on the multiple sclerosis issue, the magistrate made no conclusive findings on multiple sclerosis. Rather, he found that changed circumstances (defendant's increased income) and plaintiff's loss of a job indicated that plaintiff needed additional income on which to sustain herself. Thus, the magistrate recommended an increase of the post 1996 spousal support from $300 to $500 per month, which the trial court adopted. We will address Assignments of Error I and II together as they both address the issue of whether spousal support modification was justified by the record. -5- I. WHETHER THE TRIAL COURT ERRED WHEN IT OVERRULED THE DEFENDANT'S OBJECTIONS TO MAGISTRATE'S DECISION. II. THE MAGISTRATE ABUSED HER DISCRETION AND LACKED JURISDICTION TO RULE CONTRARY TO THE TRIAL COURT'S JOURNAL ENTRY REGARDING JURISDICTION TO MODIFY SPOUSAL SUPPORT. The magistrate's key findings, which the trial court adopted while overruling defendant's objections, stated as follows: The Magistrate finds there are several discrepancies between the Decree, Referee Report, and Journal Entry which relate to the matter for decision before the Court. The Magistrate finds the decree should be taken or read as a whole. The Magistrate need not make a finding regarding whether or not there is a diagnosis of multiple sclerosis (MS), or not, to determine if the spousal support should be modified. The Magistrate finds at least two provisions at Volume 2246 at Page 892, at Page 905, at Page 906, and Page 909 where the Court retains jurisdiction to modify spousal support during the term of the order. The order remains in effect at least until 2001. The Magistrate finds that during that term there are no limitations on the Court's authority to modify absent death, remarriage or cohabitation. The Magistrate finds the Plaintiff's last employment was with the Cleveland Public Library. As recently as last week, the Plaintiff cared for an older lady. The Plaintiff is unemployed and receives food stamps plus spousal support. The Magistrate finds that Plaintiff should be imputed with at least minimum wage of $9,880.00 The Magistrate makes no finding regarding the section of the Referee Report dealing with MS. The Plaintiff failed to submit her income and expense sheet until the close of all evidence. The Magistrate finds no objection to the late submission. Accordingly, the Plaintiff has expenses totaling $1,106.00 which include such items as $100.00 for -6- clothing and $51.00 for cosmetics, incidentals and church or other organizations. The Magistrate finds from testimony and Defendant's Income and Expense Sheet that the Defendant earns $52,000.00 gross annually and has expenses totaling $3,536.00, which includes six of the eight debts listed under Item II which were not duplicates. The Defendant failed to submit a current statement of wages and deductions which may be taken from the wages. The Magistrate finds the parties lived together approximately twenty three (23) years before separating in 1991. Based upon the foregoing, the relative earning capacities of the parties, and the reasonable expenses of the Plaintiff, the Magistrate recommends the Defendant pay $300.00 per month in accord with the provisions of the Court's prior orders commencing with the filing date, and increased to $500.00 per month commencing January 1, 1997. An award of spousal support in a decree of divorce or dissolution is a final order, but because the relief granted is equitable in nature, the court may modify its spousal support order if it reserves jurisdiction to do so. R.C. 3105.18(D). However, the court may then modify the award only upon a showing that there has been a substantial change in the circumstances of one or both of the parties that implicates the factors in R.C. 3105.18(B) in a way that justifies a modification. Leighner v. Leighner (1986), 33 Ohio App.3d 214. Trial courts are granted broad discretion concerning awards of spousal support. Their orders will not be disturbed on appeal absent an abuse of that discretion. An award of spousal support may be increased if the evidence demonstrates that the obligee's needs have increased and that the obligor's ability to pay is -7- sufficient to meet those needs. Pursuant to R.C. 3105.18, the trial court has jurisdiction to modify a periodic spousal support award based on changed circumstances. Crouser v. Crouser (1988), 39 Ohio St.3d 177, 179. In reviewing the outcome below, we are guided by the principles stated in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67: Courts in this state derive their power to award sustenance alimony from the statutes. R.C. 3105.18(A) and (B) provide a trial court with guidelines for determining whether alimony is necessary and the nature, amount and manner of alimony payments. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 414, 75 O.O.2d 474, 482, 350 N.E.2d 413, 423. The trial court is provided with broad discretion in deciding what is equitable upon the facts and circumstances of each case, but such discretion is not unlimited. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 20 O.O.3d 318, 322, 421 N.E.2d 1293, 1299. A reviewing court cannot substitute its judgment for that of the trial court unless, considering the totality of the circumstances, the trial court abused its discretion. Holcomb, supra [44 Ohio St.3d], at 131, 541 N.E.2d at 599. As we noted in Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142, for an abuse of discretion to exist, the court's attitude must be unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Accordingly, in this case, we must examine the trial court's ruling under the totality of the circumstances to determine whether it acted unreasonably, arbitrarily or unconscionably in entering its order below. The relevant factors for determining whether a modification of spousal support is warranted are set forth in R.C. 3105.18(C). This section provides: -8- (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 [3105.17.1] 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; (f) The extent to which it would be inappropriate for a party, because he will be custodian of a minor child of the marriage, to seek employment outside the home; (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; (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; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the -9- education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable. (2) In determining whether spousal support is reasonable and in determining the amount and terms of payment of spousal support, each party shall be considered to have contributed equally to the production of marital income. After a review of the trial transcript and the magistrate's decision, we find her findings are supported by the material evidence and she did not abuse her discretion in modifying the spousal support. The trial court correctly found that it retained jurisdiction to modify spousal support during the term of the order. The trial court also correctly found, based on all the relevant factors in R.C. 3105.18(C), that a substantial change of circumstances existed to warrant a modification of Mrs. Dunbar's spousal support. Whether or not Mrs. Dunbar was suffering from M.S., it was apparent that she was unable to sustain herself beyond a bare sustenance or minimum wage. She was unemployed and received food stamps. Her medical condition was serious. Dr. Morgenstern- Clarren testified that she was completely and permanently disabled and could not have been employed at that time. He also testified that she will not be able to maintain herself because she will remain totally disabled in the future. Furthermore, the defendant -10- earned a good salary from the Ohio Turnpike Commission and had ample funds available to contribute modestly to her upkeep. It is evident from the record that Mrs. Dunbar's needs had substantially increased and Mr. Dunbar's ability to pay was sufficient to meet those needs. We find no abuse of discretion in the modification. Defendant's Assignments of Error I and II are overruled. Judgment affirmed. -11- It is ordered that appellee recover of appellant her 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 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. ROCCO, J., and JAMES D. SWEENEY, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE 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 .