[Cite as Abbott v. Abbott , 2020-Ohio-5599.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

DINISE A. ABBOTT : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : TERRY L. ABBOTT : Case No. CT2020-0016 : Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Domestic Relations Division Case No. DB 2017-0968

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: December 8, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

ROSE M. FOX JOHN H. COUSINS IV Fox Law Office Grossman Law Offices LLC 233 Main Street 32 W. Hoster Street, Suite 100 Zanesville, Ohio 43701 Columbus, Ohio 43215Muskingum County, Case No. CT2020-0016 2

Baldwin, J. {¶1} Defendant-appellant Terry L. Abbott appeals from the February 2 7, 2020 Judgment Entry of the Muskingum County Court of Common Pleas, D omestic Relations

Division.

STATEMENT OF THE FACTS AND CASE {¶2} Appellant Terry L. Abbott and appellee Dinise A. Abbott were ma rried on August 22, 1990. On November 28, 2017, appellee filed a complai nt for divorce against appellant. Appellant filed an answer on December 6, 2017. {¶3} A Decision and Judgment Entry was filed on August 31, 2018. Th e trial court, in the same, found that appellant had worked numerous po sitions in the construction pipeline field and had recently earned in the rang e of $71,000.00 to $160,000.00 per year. The trial court further found that in 201 7, appellant earned $121,418.00 and that his projected net pay for 2018 was $109,97 4.00. {¶4} Pursuant to a Divorce Decree filed on September 28, 2018, appel lant was ordered to pay spousal support to appellee in the amount of $1, 000.00 per month until the death of either party or cohabitation by appellee with an u nrelated adult. The trial court retained jurisdiction over spousal support. {¶5} Thereafter, on August 23, 2019, appellant filed a Motion for Mo dification of Spousal Support. Appellant, in his motion, argued that his gros s annual wages had not met the court’s expectations and that, effective August 7, 2019 , he had a new employer and no longer was receiving per diem or truck pay.Muskingum County, Case No. CT2020-0016 3

{¶6} A hearing on appellant’s motion was held on February 14, 2020 1 . At the hearing, appellant testified that he was living with his new wi fe and her daughter. When asked if his income had changed since he was ordered, in Septem ber of 2018 to pay spousal support in the amount of $1,000.00 a month, stated that it had changed “drastically.” Transcript at 6. Appellant testified that he had been laid off from his pipeline job the last week of July of 2019 and was unable to find other positions that were similarly situated with respect to earnings. He testified that he went to work for Trucco

Construction. {¶7} Appellant testified that his 2018 gross earnings from MG Dyess were $34,300.00 as reflected on his W-2, but that at that time he al so received per diem and truck pay. Appellant testified that the total for all of the d ifferent places that he was employed in 2018 was $118,136.60 but that his take home pay was only $70,000.00. Appellant testified that, in 2019, his gross pay from ProGro En vironmental was $29,450.00 for pipeline work. He testified that he was forced i nto accepting a position at Trucco Construction as an excavator and that he was presently e mployed there, but was actively attempting to get back on the pipeline. He testified that he did not receive any pay from December 22, 2019 through January 6, 2020 from Trucco and that he did not receive any overtime pay and was not guaranteed 40 hours a week . When asked, appellant testified that his current rate of pay at Trucco was $37.14 an hour. {¶8} Appellant testified that he commuted approximately 70 miles to his job and that he did not receive per diem or truck pay from Trucco. All of his expenses traveling to and from the job was an expense to him. He testified that on av erage, he spent $190.00

1 While numerous exhibits were introduced at the hearing, when a Staff Attorney called to have the same sent to this Court, she was advised that they had been destroye d .Muskingum County, Case No. CT2020-0016 4

a month on vehicle maintenance, $547.44 on his vehicle loan, $7 3.67 for insurance, and around $800.00 a month for fuel. Appellant testified that he l et repairs go because he was unable to afford them, but that he had repairs totaling $3, 991.80 done on the truck between March of 2018 and September of 2019. {¶9} Appellant testified that he had maxed out his credit cards beca use he did not have any money in his monthly budget for these expenses. Ac cording to him, at the time of the divorce, his cards were not maxed out and they were not behind on payments. He testified that he was going into debt to pay the bills. He testified that since his divorce, he had not saved funds for retirement. Appellant was 51 years o ld at the time of the hearing. He had no retirement av ailable through T rucco, and was not vested in his union. {¶10} Appellant testified that his wife was employed and earned aroun d $32,000.00 a year and assisted with household expenses. He test ified that he broke a bone in his foot, but delayed surgery because of the costs asso ciated with not working

for at least three weeks to recover. {¶11} Appellant testified that in January of 2019, his gross income w as $10,376.00 and in 2020, it was $4,178.25 and that in January of 2019, his net income was $9,168.42 and in 2020, it was $3,118.84. He asked the trial court to ter minate his spousal support obligation so that he could ger back on his feet. He testified that he was not earning enough to support a $1,000.00 a month withdrawal from his paych eck for spousal support. {¶12} Appellant also testified that he took out a home equity line of credit through Huntington Bank in September of 2019 because he “needed somethi ng to fall back on to pay bills to make it through the winter and be able to survive. “ Transcript at 31. He neverMuskingum County, Case No. CT2020-0016 5

had a line of credit during his marriage to appellee. He used t he line of credit to meet his monthly obligations. He testified that the current balance on his line of credit was listed as $13,964.42, but that he thought it was actually down to arou nd $10,000.00 by the time of the trial. Appellant also testified that, in September of 20 19 and October of 2019, he was operating at a net monthly deficit. In September the defici t was $2,447.17 and in October it was an excess of $2,000.00. {¶13} On cross-examination, appellant testified that he took a weeken d trip to Tennessee in October and that his wife paid for the lodging. He testified that he did not use his truck to do his work but used it as transportation to w ork. He testified that between August and December of 2019, he grossed $26,385.00 and part of the money was from overtime. According to appellant, there had since been a ban on overtime. Appellant testified that when he was working on the pipeline, the per die m was for living expenses since he had to live on the road and that he was not living on the road at the time of the trial so did not have to pay for a hotel or housing away from w ork. {¶14} He testified that the home equity line was taken out in August or October of the last year and that he was behind $4,000.00 in spousal suppo rt and that he was behind on spousal support when the divorce was finalized. {¶15} Appellee testified that she lived at her parents’ property and that, at the time of the divorce, was not employed and it was not anticipated tha t she was going to become employed. She testified that she had been employed as a houseke eper at Genesis Hospital since January of 2018. She testified that her wages f or 2018 were $18,502.00 and that, other than her wages, she had income of $19,479.00 fo r 2018. Her rate of pay was $10.96 an hour and she worked 40 hours a week. Appellee tes tified that she did notMuskingum County, Case No. CT2020-0016 6

have any other sources of income and lived alone. She asked tha t spousal support remain the same because she had nothing left after paying her bills. A ppellee testified that her electric budget was around “two something” every month and that she split the bill for property taxes with her father and brother. Transcript at 56. A ppellee did not pay any rent. The full year for property taxes was $608.24. She testified tha t she was paying monthly

on a credit card from T.J. Maxx and had a balance on her credit card to Lowe’s in the amount of $929.69 after purchasing a washer and dryer. She also had a Kohl’s credit card that she was paying on. {¶16} Appellee testified that she paid $89.33 a month for car insuran ce. She testified that she had on ongoing bill with Genesis Healthcare for treatment for bladder cancer. She had health insurance through her employer and had a plan to pay Genesis $26.50 a month. Her balance was around $923.00. Appellee testif ied that she was still undergoing treatment for bladder cancer. She testified that the re was a Genesis bill that appellant was to pay as part of the divorce and that he had not paid the same and it was added to her bill. Appellee pays $16.30 a month for life insura nce, $42.50 a month for trailer insurance, and approximately $76.00 for trash pickup. S he pays $60.00 a month for phone and between $200.00 and $300.00 a month for groceries

. {¶17} Appellee testified that she purchased a 2016 Ford Escape in Aug ust of 2019 because her other vehicle kept breaking down and that she paid $354.76 a month for the car. She testified that her home was in poor condition and need ed roof repairs but that she could not afford repairs. She testified that her only retir ement was a 403(b) through her current employer and social security. She testified that sh e could not afford her monthly expenses without the spousal support award. Appellee te stified that she had toMuskingum County, Case No. CT2020-0016 7

buy uniforms for work and was not reimbursed for them and that she spent around $30.00 a week on gasoline. She testified that in April of 2019 she got a 30 cent an hour raise and that they usually got a yearly raise. Appellee tested that she had gross pay of $883.20 and net pay of $633.29 every two weeks. {¶18} On cross-examination, appellee testified that she grossed aroun d $20,000.00 from Genesis according to her 2019 W-2. She testifie d that her 2019 W-2 reflected a couple of thousand dollars more than her 2018 W-2. Appellee testified that she was contributing $58.14 a month to her 403(b). At the time of the divorce, the balance on her TJ Maxx card was $5,242.51 but the Lowe’s account was a new account since

the divorce. She further testified that the balance owed on her Kohl’s account was around $900.00 with a $27.00 a month minimum payment. {¶19} Appellee testified that her monthly expenses were approximately $1,500.00 and her net take home pay was approximately $1,300.00. Appelle e, at the time of the divorce, was spending approximately $500.00 a month on cigarett es and admitted that that would have been included as part of her budget. She testif ied that she spent two or three hundred dollars a month on cigarettes and alcohol, but wa s unsure of the amount except to testify that it was probably less than the $500.00 sh e disclosed at the time of the divorce. Appellee testified that she was getting around a $1,200.00 tax refund. {¶20} Appellee testified that when she was married to appellant, they did not take vacations but that since the divorce, she had gone camping and had traveled to the Outer Banks and Put-In-Bay. Appellee testified that she only had to p ay for her food and drink. She testified that she did not have to take out any personal lo ans to make her monthly expenses and that the trailer she lived in was the trailer that she lived in during herMuskingum County, Case No. CT2020-0016 8

marriage. There was no line of credit attached to her home and appellee was not maxed

out on her credit cards. She testified that the vehicle that s he purchased was used. Appellee testified that the expenses that she had for smoking w as known by the court at the time of the divorce, but that spousal support was awarded a nyway. {¶21} The trial court, as memorialized in Judgment Entry filed on Feb ruary 27, 2010, denied appellant’s Motion to Modify. The trial court foun d that while there had been a change in appellant’s income, “the original spousal support a ward remains reasonable and appropriate...” {¶22} Appellant now appeals, raising the following assignments error on appeal: {¶23} “I. THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND RULED

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN DENYING APPELLAN T’S

MOTION TO MODIFY SPOUSAL SUPPORT.” {¶24} “II. ALTERNATIVELY, THE TRIAL COURT ERRED AND ABUSED ITS

DISCRETION WHEN IT MISCALCULAT ED APPELLANT’S ANNUALIZED INCOME

FROM HIS NEW EMPLOYMENT.”

II {¶25} Appellant, in his second assignment of error, argues that the t rial court erred and abused its discretion when it miscalculated appellant’s ann ualized income from his new employment. We agree. {¶26} A trial court's decision to modify spousal support will not be reversed absent

an abuse of discretion. Brzozowski v. Brzozowski , 8th Dist. Cuyahoga No. 101013, 2014- Ohio-4820, ¶ 20. In order to find an abuse of discretion, we mu st determine that the trialMuskingum County, Case No. CT2020-0016 9

court's decision was unreasonable, arbitrary, or unconscionable

. Blakemore v.

Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Dist.1996). {¶27} In the case sub judice, trial court found that, while there ha d been a change in appellant’s income, the original spousal support remained re asonable and appropriate and denied appellant’s motion to modify the same. {¶28} With respect to appellant, the trial court found that, at the t ime of the divorce, appellant had a work history including numerous positions in th e construction pipeline field earning $71,000.00 to $161,000.00 annually. The trial cou rt found that, in 2017, appellant earned $121,418.00 and, in 2018, he was projected to earn approximately $110,000.00. The trial court further found that after the divor ce, appellant was laid off from his position with the pipeline company and was unable to find e quivalent employment. At the time of the hearing, appellant was earning $37.14 an hour o r $77,251.00 annually based on a forty hour work week. The trial court found that al though overtime was not currently available to appellan t, it would likely be available again in the future. {¶29} The trial court further found that for the period of August 6, 2019 through December 6, 2019, appellant grossed the sum of $26,385.00 which it annualized to $105,540.00. The trial court stated, in relevant part, as follo ws: “The Court finds Defendant cannot be certain with regard to his income with Truc co Construction. As is stated above, at a straight forty hour week he would earn $77,2 51.00. Based upon his history with Trucco Construction for the last four months of 20 19 he would earn $105,540.00. The Court finds that actual earnings of 2019 repre sents a reasonable expectation of Defendant for 2020 and in the future and finds t hat to be $88,9070.00. (sic)”Muskingum County, Case No. CT2020-0016 10

{¶30} However, the period from August 6, 2019 through December 6, 201 9 is a four month period. Thus, the trial court erred when it multipli ed $26,385.00 by four in arriving at an annualized income of $105.540.00 for appellant. The trial court should have multiplied the $26,385.00 by three and arrived at a figure of $ 79,155.00. We believe this

mathematical miscalculation is of sufficient size to merit reve rsal of the trial court's decision. Nevertheless, we find fundamental fairness mandates a reversal and re mand to the trial court to reconsider appellant’s motion using the c orrected annualized income figure for appellant. It is clear that the trial court relied o n the $105,540.00 figure in determining appellant’s earning capacity in this case. {¶31} Appellant’s second assignment of error is, therefore sustained. Based on our disposition of appellant’s second assignment of error, appe llant’s first assignment of error is premature.Muskingum County, Case No. CT2020-0016 11

{¶32} Accordingly, the judgment of the Muskingum County Court of Comm on Pleas, Domestic Relations Division, is reversed and this matter is remanded for further proceedings consistent with this Opinion.

By: Baldwin, J. Hoffman, P.J. and Delaney, J. concur.