[Cite as Papp v. Papp , 2013-Ohio-506.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
EDWARD L. PAPP : : Appellate Case No. 25333 Plaintiff-Appellant : v. : Trial C ourt Case No. 1994-DR-380 : MARLENE M. PAPP : : (Civil Appeal from Common Pleas Defendant-Appellee : ( Court, Domestic Relations) :

. . . . . . . . . . . O P I N I O N Rendered on the 15th day of February, 2013.

. . . . . . . . . . . CHARLES M. BLUE, Atty. Reg. #0074329, Murr, Compton, Claypoole & Macbeth, 401 East Stroop Road, Kettering, Ohio 45429-2829 Attorney for Plaintiff-Appellant DAVID M. McNAMEE, Atty. Reg. #0068582, McNam ee Law Office, 42 Woodcroft Trial, Suite D, Beavercreek, Ohio 45430 Attorney for Defendant-Appellee

. . . . . . . . . . . . . FAIN, P.J. {¶ 1} Plaintiff-appellant Edward Papp appeals from an order denying his motion to terminate his spousal support obligation. Mr. Pa pp contends that the tr ial court abused its discretion in denying the motion to terminate, because it erred in finding no change in 2

 circumstances. He further contends that the trial court abused its discretion by failing to recognize that a continued award of spousal s upport – when his only income consists of his retirement benefits – is precl uded by the provision in the di vorce decree for the division of property, which awarded him his retirement plan “free and clear” of any claims by Ms. Papp. {¶ 2} We conclude that the trial court erre d in holding that the only changes in circumstance that could be a ba sis for terminating spousal suppor t are the death or remarriage of the obligee spouse. But we conclude that this error is harmless because, on the facts in evidence, there was no change of circumstances justifying the te rmination of spousal support. We further conclude that Mr. Papp’s inco me is available to pay spousal support, notwithstanding that his income is derived from an asset that was awarded to him in the division of property provided for in the divorce decree. Accordingly, the judgment of the trial court is Affirmed.

I. The Papps Are Divorced {¶ 3} Edward and Marlene Papp were marri ed in 1970. They were divorced on September 8, 1994. Of relevance he reto, the parties’ separation agreement, incorporated in the divorce decree, reflects that both parties “shall retain their respective retirement accounts free and clear of any claim of the other.” Mr. Papp was ordered to pay spousal support of $500 per month. The language regarding the spousal support, pertinent hereto, stated: Such support shall * * * continue un til further Order of Court. * * * Spousal support payments shall terminate upon the death of either party or the remarriage of support obligee. * * * Spous al support shall be subject to the 3

 continuing jurisdiction of this court. Each party shall notify the other party in writing of any circumstance which mig ht modify spousal support rights, including any variation over 10% in gross income; failure to do so may result in a modification of spousal support eff ective with the date of change in circumstances. * * * IT IS FURTHER ORDERED that [Mr. Papp] shall maintain life insurance on his life * * * naming [Ms. Papp] as sole and primary beneficiary. * * * This provision shall re main in effect until all spousal support obligations are satisfied or terminate d. * * * [Ms. Papp] shall have a valid claim against [Mr. Papp’s] probate estate to the extent that this provision has not been fully obeyed.

II. Spousal Support {¶ 4} In 2000, Ms. Papp moved to increase spousal support which was granted. The court increased Mr. Papp’s monthly suppor t obligation to $775. In April, 2011, Mr. Papp moved to terminate his spousal support obliga tion. Mr. Papp argued that he had retired effective January 1, 2011, and was receiving retirement benefits from his pension plan. He noted that the retirement benefits are his only source of income. He also noted that the divorce decree awarded him his interest in his retirement account free and clear of any claims from Ms. Papp. He argued that payment of s pousal support constitutes an improper claim by Ms. Papp upon his retirement account, and that Ms. Papp was not entitled “to any spousal support arising from [his] retirement payments and the same should be terminated.” {¶ 5} The magistrate denied the motion, c oncluding that the award of spousal 4

 support was separate from the di vision of property. The magistrate also found that the reasons justifying the award of support had not changed. The magistrate went on to state: More importantly, [Mr. Papp] does not address the simple fact that the spousal support award provides for ter mination only upon death or remarriage and no other basis is set forth. If th e parties had intende d for spousal support to terminate upon [Mr. Papp’s] retirement, it seems reasonable that they would have said so and documente d it in the most important and obvious place. This magistrate also notes that it seems ve ry reasonable for the parties to have (correctly) assumed that at some point [Mr. Papp] would retire but that his retirement would not necessarily change the substantial income disparity in this case (as it indeed has not), and that the reasons justifying spousal support would remain gene rally applicable. {¶ 6} The trial court adopted the decisi on of the magistra te over Mr. Papp’s objections, agreeing generally with the magistra te, and adding that there had been no change in circumstances that was not contemplated by the parties. From the order denying his motion to terminate spousal support, Mr. Papp appeals.

III. Although the Trial Court Erred in Holding that Only The Death of Either Party or Ms. Papp’s Remarriage Can Constitute a Chan ge of Circumstances for Purposes of Terminating Spousal Support, that Error Is Harmless, Because the Evidence in this Record Does Not Support a Termination of Spousal Support {¶ 7} Mr. Papp’s First Assignment of Error is as follows: 5

 THE TRIAL COURT ABUSED ITS DISCRETION BY HOLDING THAT THE RETIREMENT OF PLAINTIFF DID NOT CONSTITUTE A SIGNIFICANT CHANGE IN CIRCUMSTANCES. {¶ 8} Mr. Papp argues that the trial court e rred in holding that spousal support could only be terminated upon the death of either party or the remarriage of Ms. Papp. {¶ 9} The first issue is whether the decr ee limits the circumstances under which the spousal support obligation can be terminated. Ms. Papp, the magist rate, and the tr ial court all focus on the language in the decree stating th at the obligation “shall terminate upon the death of either party or the remarriage of [Ms. Pa pp],” and conclude that death and remarriage constitute the only reasons for termination. But the decree also provides that the support shall continue “until further order of the Court.” {¶ 10} We conclude that the pr oper construction of the divor ce decree is that the trial court may terminate or modify the support order upon a change in circumstances, but that the support order will not, in any event, su rvive Ms. Papp’s death or remarriage. {¶ 11} The next issue is whether Mr. Papp’s retirement constituted a change of circumstances requiring a change in his spousal support obligation. {¶ 12} A trial court has the authority to modify spousal support if the court determines that “the circumstances of either party have changed” and that the divorce decree contains a provision authorizing the court to m odify the amount or terms of spousal support. R.C. 3105.18(E); Allread v. Allread, 2d Dist. Darke No. 2010 CA 6, 2011–Ohio–1271, ¶ 19. {¶ 13} 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 6

 expenses.” R.C. 3105.18(F). The change of circ umstances must be “substantial,” and cannot have been contemplated and take n into account by the parties or the court at the time of the original decree. Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009–Ohio–1222, 905 N.E.2d 172, ¶ 32–33. “Courts have misconstrued th at standard by applying a test of foreseeability: was the particular circumstance one reasonably to be anticipated? The better test is one grounded in the record, and contemplat es a finding that the circumstance is not one that ‘was thoroughly considered at the time of the divorce.’ ” Allread v. Allread , 2d Dist. Darke No. 2011-CA-14, 2012-Ohio -2093, ¶ 16 (Citation omitted). {¶ 14} If a substantial change in circumstances has occurred, the trial court must examine the existing order in light of the changed ci rcumstances, considering whether spousal support is still appropriate a nd reasonable and, if so, in what amount. Norbut v. Norbut, 2d Dist. Greene No. 2006–CA–112, 2007–Ohio–2966, ¶ 15. When d eciding whether the existing order should be modified, a trial court must consider all relevant fact ors, including those listed in R.C. 3105.18(C). Id. The relevant factors include (1) the income of the parties from all sources, (2) the parties' relative earning abilities, (3) the ages and physical, mental, and emotional conditions of the parties, (4) the retirement benefits of the parties, (5) the duration of the marriage, (6) the standard of living established during the marriage, (7) the parties' relative assets and liabilities, and (8) any other factor that is relevant and equitable. See R.C. 3105.18(C). {¶ 15} Trial courts have broad discretion regardin g spousal support orders. Chepp v. Chepp , 2d Dist. Clark No. 2008 CA 98, 2009-Ohio-6388, ¶ 5. Accordingly, an appellate court ordinarily w ill not disturb those orders ab sent an abuse of discretion. Id. A trial court 7

 abuses its discretion when the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 16} In the decision denying the terminati on, the magistrate stated that “if the parties had intended for spousal support to terminate upon [Mr. Papp’s] retirement, it seems reasonable that they would have said so and documented it in the most important and obvious place.” However, it appears that neither the magistrate nor the trial court actually considered whether retirement was a circumstance that was thoroughly considered at the time of the divorce decree. The pleadings filed indicate that Mr. Papp considered retirement a substantial change while Ms. Papp did not. This indicates th at a question of fact existed with regard to the original decree. Neither the magistrate nor the trial court held a hearing to take evidence on the matter. And again, the magistrate and tr ial court only considered death or remarriage as possible reasons for terminating support. Thus , we conclude that th e trial court erred in this regard. {¶ 17} But any error in this regard is ha rmless. When support was increased in 2000, Ms. Papp had been diagnosed with multiple sclerosis and had retir ed on disability. At that time her income was $52,348, and her m onthly expenses were $3,742. Mr. Papp’s income at that time was $81,919, and hi s monthly expenses were $4,318. {¶ 18} At the time of filing the motion to terminate, Mr. Papp’s income – consisting of his retirement benefits – was $95,484, and his monthly expe nses were $4,255. Ms. Papp’s income was relatively unchanged at $54,453. Mr . Papp was 64, with no health issues, and Ms. Papp was 62, with serious health issues, as a result of which, she used a wheel chair for mobility. Ms. Papp’s monthly expenses totaled $3,600, while Mr. Papp’s were $4,255. 8

 {¶ 19} The magistrate and trial court found that the “reasons justifying [the original order of spousal support [including income dispar ity] * * * remain genera lly applicable.” We agree. The financial situati on of Mr. Papp, the obligor spous e, had improved significantly; the financial situation of Ms. Papp was essentially unchanged. Obviously, then, these facts do not provide a basis for termina ting or reducing spousal support. {¶ 20} Mr. Papp’s First Assignment of Error is overruled.

IV. Spousal Support Is Payable out of Mr. Papp’s Income, Even When that Income Is in the Form of P eriodic Payments from a Retirement Account that Was Awarded to Him in the Divisi on of Property {¶ 21} Mr. Papp’s Second Assignment of Error is as follows: THE TRIAL COURT ABUSED ITS DISCRETION BY HOLDING THAT AN ASSET PREVIOUSLY DIVIDED BY THE PARTIES, WHICH WAS RETAINED “FREE AND CLEAR” OF ANY CLAIMS OF THE OTHER SPOUSE, MAY BE USED TO FUND SPOUSAL SUPPORT. {¶ 22} Mr. Papp argues that since he was awarded his retirement account “free and clear” of any claims by Ms. Papp, the trial court has e rroneously given Ms. Pa pp an interest in his separate property. We disagree. {¶ 23} As noted by the magistrate: [W]hile an equitable division of property and determination of spousal support are certainly interrelated legal concepts, they are also separate and distinct. “[A]fter the court determines the division or dis bursement of property . . . the court of common pleas may award 9

 reasonable spousal support” after considering a le ngthy list of factors (one of which is the retirement benefits of the parties). {¶ 24} In this case, Mr. Papp was awarded hi s retirement account free and clear of any claims from Ms. Papp. Ms. Papp was not given any interest in the pension plan by any means, including by means of a Qualified Domestic Relations Order. Mr. Papp now receives a substantial income from that retirement account, and that income is properly considered when determining the appropriateness a nd amount of spousal support. See , Templeton v. Templeton , 2d Dist. Montgomery No. 18860, 2001 WL 1173340, * 2 (Oct. 5, 2001). {¶ 25} Mr. Papp’s Second Assignme nt of Error is overruled.

V. Conclusion {¶ 26} Both of Mr. Papp’s assignme nts of error having been ove rruled, the order of the trial court denying his motion to terminate spousal support, from which this appeal is taken, is Affirmed.

. . . . . . . . . . . . . FROELICH and HALL, JJ., concur.

Copies mailed to: Charles M. Blue David M. McNamee Hon. Denise L. Cross