[Cite as Vernell v. Vernell, 2022-Ohio-1510.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

ANTHONY VERNELL, : 

: Case No. 21CA2 

Plaintiff-Appellant, : 

: 

v. : DECISION AND JUDGMENT 

: ENTRY 

JEANNE M. VERNELL, : 

: RELEASED: 05/02/2022

Defendant-Appellee. :

__________________________________________________________________

APPEARANCES:

K. Robert Toy, Toy Law Office, Athens, Ohio, for Appellant.

Zachary L. Tidaback, Mollica, Gall, Sloan & Sillery Co., LPA, Athens, Ohio, for 

Appellee.

________________________________________________________________ 

Wilkin, J.

{¶1} Appellant, Anthony Vernell, appeals the Athens County Court of 

Common Pleas judgment entry modifying his spousal support obligation to 

$2,800 per month. In appellant’s three assignments of error, he challenges the 

trial court’s modification order in which the court reduced the spousal support 

obligation by $200, when appellant’s income decreased from $115,000 to 

approximately $62,000. 

{¶2} Appellant first argues the trial court erred in not considering a medical 

malpractice settlement he shared with appellee, Jeanne M. Vernell, as a lump 

sum spousal support payment. He further claims the court failed to include 

appellee’s annuities as income. In the second assignment of error, appellant

maintains that with his decreased income and current expenses, the spousal 
Athens App. No. 21CA2 2

support payment of $2,800 does not leave him with sufficient funds to live on. 

Finally, appellant asserts the court failed to consider the standard of living factor

in relation to COVID-19. 

{¶3} Because the trial court failed to explain the reason for not considering 

all submitted expense evidence and its grounds to reduce the balance to one of 

appellant’s checking accounts, we conclude the trial court abused its discretion. 

We reverse the spousal support modification order and remand the matter to the 

trial court to issue a new modification order. 

PROCEDURAL BACKGROUND AND FACTS

{¶4} In April 2011, appellant and appellee divorced after 251⁄2 years of 

marriage. The divorce decree divided the parties’ marital assets and included a 

spousal support order of appellant paying appellee directly $3,000 per month.

The spousal support was for life subject to the court’s continued jurisdiction to 

modify or terminate the spousal support upon a showing of a change of 

circumstances, appellee’s remarriage and/or cohabitation with a person of the 

opposite sex, or the death of either party. 

{¶5} While the divorce proceedings were pending, the parties’ adult 

daughter passed away after suffering an anaphylactic reaction on October 3, 

2008. Appellant filed a medical malpractice complaint. Although appellee was 

not a party to the medical malpractice action, appellant informed the court that he 

intends to equally divide any monetary award with appellee. Appellant followed 

through, and, even though the divorce was finalized at that point, gave appellee 
Athens App. No. 21CA2 3

the sum of $333,333.33 when the medical malpractice case settled for 

$1,000,000.

1

{¶6} Years later, on April 15, 2020, appellant filed a motion to terminate 

spousal support. In his motion, appellant asserted the change of circumstances

was his retirement resulting in a significant reduction in his income. He further 

claimed that appellee no longer requires his financial support. A hearing on the 

motion was held on September 21, 2020. 

{¶7} At the hearing, appellant testified he is 68 years of age and retired in 

September 2019. He was eligible to retire since he was 67 years of age and had 

been working for 30 years. And it was time for him to retire because driving at 

night was an issue for him and his employment required a lot of travelling. Prior 

to retirement, his annual income was $115,000, but now it is significantly less in 

which he receives monthly net income of $2,421.29 from pension and $2,659

from social security. Accordingly, appellant’s total monthly net income is 

$5,080.29. 

{¶8} Appellant next identified Exhibit B that lists his monthly expenses of 

$712.33 for mortgage, $76.60 water bill, $49.99 internet, $115.79 Direct TV, and 

$51.15 (every three months) trash bill, and yearly expenses of $1,000 auto 

insurance, $849 home insurance, and $4,714.47 property taxes. Appellant also 

testified he has monthly expenses of $432 car payment, $250 credit card, and 

$246 for timeshare property. 

1 Appellant’s attorney received one-third of the settlement money. 
Athens App. No. 21CA2 4

{¶9} On cross-examination, appellant was questioned regarding the 

balances in his bank and investment accounts. Appellant has two Ameriprise 

financial accounts totaling $455,000, a Roth IRA with a balance of $64,000, and 

a mutual fund annuity with a balance of $169,000. Further, appellant indicated 

that his checking and savings accounts with Ohio University Credit Union 

(“OUCU”) per his submitted exhibits indicate a balance of $20,236 and $30,746, 

respectively. However, the checking account is now less because since that 

statement appellant paid his monthly spousal support obligation out of that 

account. Appellant also has checking and savings bank accounts with PNC

Bank. According to appellant, the balances in his PNC Bank accounts per his 

exhibits are outdated, in which the checking account had a balance of $16,509, 

but since then appellant paid the property taxes, his car and home insurance 

bills, and utilities out of that account. The savings account at PNC Bank has 

more money than the $87,000 per the submitted statement because of the 

inheritance appellant received after his mother passed away. 

{¶10} Appellant explained the spousal support of $3,000 is “depleting” his 

pension account and he does not know “how much longer I could continue to do 

that.” 

{¶11} Appellee also testified at the hearing. She is permanently disabled 

and moved to Florida on the advice of her medical physician. She resides in a 

golf cart community in the event she is unable to drive due to health reasons. 

Other than the spousal support, appellee’s main source of income is the disability 

benefits she receives through Ohio Public Employees Retirement System 
Athens App. No. 21CA2 5

(“OPERS”) in the amount of $1,666. Appellee explained, however, that as soon 

as she turns 65 years of age, the benefits will be converted to retirement 

payments and will decrease to $1,253. Appellee now also receives monthly 

payments of $563 from her annuity investment with Catholic Ladies of Columbia 

(“CLC”) to cover her car payment and car insurance. The CLC annuity has a 

balance of $53,455.22. The other investments appellee has are two annuities

totaling $271,799.41, and an IRA account, $228,747.39. The two annuities,

however, are not accessible until appellee reaches the age of 72. 

{¶12} Appellee provided the court with a comprehensive list of her monthly 

and yearly expenses. The monthly expenses total $3,648 and include: $404.76

car payment; $51.80 cell phone; $100 clothing; $250 credit card; $80 dining out; 

$100 donation to church; $175 electric; $50 entertainment; $50 gasoline; $530 

groceries; $100 hair salon; $77.33 internet; $33.35 streaming services; $60 

membership to Massage Envy; $144.60 Medicare; $822.86 mortgage; $410 

prescriptions; and $208.30 water/amenities. The yearly expenses according to 

appellee total $18,080.20 and include: $964 car insurance; $46.48 car 

registration; $780 car/golf cart maintenance; $75 association fee; $876 

homeowners hazard insurance; $2,544 home maintenance; $72.24 vision 

insurance; $411.84 dental insurance; $1,303.80 out of pocket medical/dental 

expenses; $1,133.06 pet care; $2,415.78 property taxes; $162 garbage/recycle; 

$6,950 federal taxes; and $600 travel/memberships. Appellee maintains she 

requires the spousal support in order to pay her bills. 
Athens App. No. 21CA2 6

{¶13} At the conclusion of the hearing, the magistrate took the matter 

under advisement. On November 3, 2020, the magistrate issued a written 

decision finding a change of circumstances warranting modification of the 

spousal support. Appellant was eligible to retire and did not retire simply to avoid 

or decrease his spousal support obligation. The court then applied the factors in 

R.C. 3105.18(C)(1) first finding that appellant’s annual income decreased from 

$115,000 to $62,169.60, and appellee’s annual income was $23,150.64. With 

regard to their age and physical condition, appellant is 68 years of age and other 

than slowing down due to his age, did not express any other physical ailment. 

Appellee, on the other hand, is 64 years of age and will turn 65 on July 24, 2021, 

and is permanently disabled and suffers from fibromyalgia, post-traumatic stress 

disorder, depression and anxiety. 

{¶14} Both appellant and appellee have investment accounts. Appellant 

has investment accounts totaling $668,000, and appellee’s investments total 

$554,002.02. The magistrate, however, stated that a large portion of appellee’s 

assets are contained within two “annuities with Merrill Lynch that she cannot 

access until age 72.” Appellant and appellee each have checking and savings 

accounts, in which he has a total balance of $145,591, and appellee has a total 

balance of $28,076.35. As for the expenses, the magistrate made the following 

findings:

Movant testified to a budget that results in annual expenses 

of approximately $24,000.00. He did not include such things as car 

insurance, car registration, estimated federal taxes, to name a few, 

that Respondent included on her budget. Removing estimated 

federal taxes and home maintenance from Respondent’s budget 

modifies her yearly expenses to $8,840.20. Respondent’s monthly 
Athens App. No. 21CA2 7

expenses total $3,648.00. Totaling these expenses results in annual 

expenses of $52,616.20 - more than twice Movant’s annual 

expenses. It does not appear that Respondent has artificially inflated 

her budget, but, rather, that her budget is much more detailed and 

includes expenses that Movant didn’t, such as food[,] groceries.

{¶15} The magistrate also indicated appellant was remarried and his 

spouse has an annual income of $38,000. As for tax consequences, the 

magistrate continued the previous order of the spousal support being taxable as 

income for appellee and a deduction for appellant. The magistrate then 

recommended a reduction to appellant’s spousal support obligation to $2,800 per 

month effective January 1, 2021. 

{¶16} Appellant filed objections to the magistrate’s recommendation. 

First, he challenged the magistrate’s failure to consider the $333,333.33

settlement as a lump sum spousal support payment. Second, he argued there 

was error in failing to include appellee’s two annuities as a source of income. 

Third, appellant maintained the modified spousal support is not reasonable with 

the significant decrease in his income after retiring. According to appellant, he 

cannot afford paying the spousal support. Finally, appellant claimed the 

magistrate failed to consider the standard of living factor. 

{¶17} Appellee filed a written response negating appellant’s claims in 

which there is no caselaw supporting his argument the settlement money should 

be considered as a lump sum spousal support payment. Additionally, the 

annuities were considered by the magistrate but they are not accessible to 

appellee until she reaches the age of 72. Further, appellant had the burden of 

proof and he failed to demonstrate how his standard of living changed. Finally, 
Athens App. No. 21CA2 8

there was no error since appellant’s income is greater than appellee and he has 

significant assets. 

{¶18} The trial court overruled appellant’s objections finding the lump sum 

money was considered since the money was used as funding of appellee’s two 

annuities. However, the annuities are not accessible to appellee until she 

reaches 72 years of age. Moreover, based on the difference of the parties’ 

income, $62,169.60 compared to $23,150.64, the order of $2,800 spousal 

support was not in error. The trial court then adopted the magistrate’s 

recommendation and modified the spousal support to $2,800 per month also 

effective January 1, 2021. The trial court retained jurisdiction and held that 

spousal support will remain in effect for life or until there is a change of 

circumstances, death of either party, or appellee’s cohabitation with a person of 

the opposite sex and/or remarriage. The modification order is now before us on 

appeal. 

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED BY FAILING TO PROPERLY 

CHARACTERIZE, ACCOUNT FOR, AND CONSIDER THE 

$333,333.33 WRONGFUL DEATH SETTLEMENT GIVEN 

TO DEFENDANT FROM PLAINTIFF IN 2011 (GIVEN 

FROM PLAINTIFF TO DEFENDANT AFTER THE APRIL 

20, 2011 FINAL DECREE AND NOT CONSIDERED IN 

FINAL DECREE).

II. THE TRIAL COURT ERRED BY ORDERING PLAINTIFF 

TO PAY SPOUSAL SUPPORT OF $2,800 AS PLAINTIFF 

CANNOT AFFORD TO PAY IT AS IT LEAVES HIM WITH 

BASICALLY NO INCOME AFTER PAYMENT AND 

DEFENDANT DOES NOT HAVE A NEED FOR THIS 
Athens App. No. 21CA2 9

MONEY AS HER STANDARD OF LIVING HAS 

IMPROVED SINCE DIVORCE.

III. NOT TAKING COVID-19 INTO ACCOUNT WHEN 

CONSIDERING THE “STANDARD OF LIVING” FACTOR 

FOR THE R.C. § 3105.18(C)(1) ANALYSIS[.]

{¶19} In the first assignment of error, appellant argues the trial court erred 

by failing to consider the settlement amount of $333,333.33 as a lump sum 

spousal support payment. Further, he claims the court did not follow the 

statutory definition of income by not taking into account appellee’s annuities, part 

of which were funded by the settlement money. In conclusion, appellant 

maintains the trial court failed to adequately analyze the factors in R.C. 

3105.18(C)(1). 

{¶20} Appellant’s second assignment of error challenges the numerical 

aspect of the trial court’s order and claims he cannot afford to pay the $2,800 

spousal support obligation. Appellant first asserts the trial court failed to consider 

all his yearly expenses including his home and car insurance. Additionally, even 

though he testified to the additional monthly liability of $250 towards his credit 

card bill, the court’s order did not reflect that evidence. And when his expenses 

are accurately calculated, the spousal support order of $2,800, leaves appellant 

with just $80.08 a month. Appellant thus maintains that the order unreasonably 

punishes him while appellee resides in a golf cart community and elects not to 

live off of the settlement money. 

{¶21} In the final assignment of error, appellant argues there was 

insufficient evidence to analyze the standard of living factor due to the COVID-19 
Athens App. No. 21CA2 10

pandemic. But at the same time, he testified to the best of his abilities of how his 

standard of living changed as he travels less now.

{¶22} Appellee disputes appellant’s arguments and states there is no 

evidence that the settlement money was a lump sum spousal support payment, 

and two of appellee’s annuities are not accessible until she reaches the age of 

72. Second, the trial court’s order is warranted since appellant’s income is more 

than double that of appellee. Finally, appellant had the burden to demonstrate a 

change in his standard of living and he should not be entitled to a new hearing to 

present additional evidence. 

{¶23} We will address all assignments of error together as they are 

interrelated and because we conclude the trial court’s modification was 

unreasonable for failing to take into consideration all the evidence presented. 

I. STANDARD OF REVIEW AND LAW

{¶24} “A trial court lacks jurisdiction to modify a prior order of spousal

support unless the decree of the court expressly reserved jurisdiction to make the

modification[.]” Mandelbaum v. Mandelbaum, 121 Ohio St. 3d 433, 2009-Ohio1222, 905 N.E.2d 172, paragraph two of syllabus. If the trial court retained

jurisdiction, it subsequently must find “(1) that a substantial change in 

circumstances has occurred and (2) that the change was not contemplated at the 

time of the original decree.” Id. “The party seeking a modification of spousal

support has the burden of proving a changed circumstance justifying a change in 

the level of spousal support.” Carlisle v. Carlisle, 180 Ohio App.3d 569, 2009-

Ohio-215, 906 N.E.2d 483, ¶ 10 (4th Dist.), citing Joseph v. Joseph, 122 Ohio 
Athens App. No. 21CA2 11

App.3d 734, 736, 702 N.E.2d 949, (2d Dist.1997). “[I]f the court determines that 

a change of circumstances exists, it must then determine the amount of spousal 

support that is appropriate and reasonable.” Cassidy v. Cassidy, 4th Dist. Pike 

No. 03CA721, 2005-Ohio-3199, ¶ 29. R.C. 3105.18(F)(1) outlines the preceding 

law as follows: 

a change in the circumstances of a party includes, but is not limited 

to, any increase or involuntary decrease in the party’s wages, salary, 

bonuses, living expenses, or medical expenses, or other changed 

circumstances so long as both of the following apply:

(a) The change in circumstances is substantial and makes the 

existing award no longer reasonable and appropriate.

(b) The change in circumstances was not taken into account by the 

parties or the court as a basis for the existing award when it was 

established or last modified, whether or not the change in 

circumstances was forseeable.

{¶25} “If a change of circumstances has occurred, the court then decides 

if spousal support is appropriate and reasonable based on the [] factors listed in 

R.C. 3105.18(C)(1)[.]” Bishman v. Bishman, 4th Dist. Washington No. 07CA30, 

2008-Ohio-1394, ¶ 13. R.C. 3105.18(C)(1) provides that:

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;

(f) The extent to which it would be inappropriate for a party, because 

that party will be custodian of a minor child of the marriage, to seek 

employment outside the home;
Athens App. No. 21CA2 12

(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 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.

{¶26} In considering the factors in R.C. 3105.18(C)(1), a trial court 

must consider all of the statutory factors and not base its 

determination upon any one factor taken in isolation. Kaechele v. 

Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988), paragraph one 

of the syllabus. Additionally, although a trial court possesses broad 

discretion to determine whether spousal support is reasonable and 

appropriate, it must consider the statutory factors and must indicate 

the basis for a spousal support award in sufficient detail to enable a 

reviewing court to determine that the award complies with the law. 

Kaechele at paragraph two of the syllabus.

Eichenlaub v. Eichenlaub, 2018-Ohio-4060, 120 N.E.3d 380, ¶ 13 (4th Dist.). 

{¶27} “The trial court is afforded wide latitude in determining spousalsupport issues, including issues regarding the modification of spousal support.” 

Carlisle, 180 Ohio App.3d 569, 2009-Ohio-215, 906 N.E.2d 483, ¶ 10 (4th Dist.),

citing Bolinger v. Bolinger, 49 Ohio St.3d 120, 122, 551 N.E.2d 157 (1990). “An 

appellate court will not reverse a determination on spousal support unless the 

trial court has abused its discretion.” Id. An abuse of discretion “is more than a 
Athens App. No. 21CA2 13

mere error of law or judgment; it implies that a trial court’s decision was 

unreasonable, arbitrary or unconscionable.” State v. Martin, 151 Ohio St.3d 470, 

2017-Ohio-7556, 90 N.E.3d 857, ¶ 27, citing Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶28} “In making this highly deferential review, an appellate court may not 

freely substitute its judgment for that of the trial court.” Carlisle at ¶ 10, citing In

re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). “ ‘[A]n 

appellate court reviews the factual findings to support that award under a 

manifest weight of the evidence standard.’ ” Tittle v. Tittle, 4th Dist. Pickaway 

No. 19CA38, 2021-Ohio-1571, ¶ 12, quoting Freeland v. Freeland, 4th Dist. 

Jackson No. 02CA18, 2003-Ohio-5272, ¶ 14. “If the record reflects that the trial 

court considered the statutory factors, and if the judgment contains details 

sufficient for a reviewing court to determine that the support award is fair, 

equitable, and in accordance with the law, the reviewing court will uphold the 

award.” Martindale v. Martindale, 4th Dist. Athens No. 18CA17, 2019-Ohio-3028, 

¶ 90, citing Eichenlaub, 2018-Ohio-4060, ¶ 13.

II. ANALYSIS

{¶29} As appellant in general challenges the spousal support obligation in 

proportion to his income and expenses, we will review the trial court’s 

determination of the parties’ income, assets, expenses, appellant’s current wife’s 

income, and the trial court’s evaluation of the standard of living factor. We are 

mindful the trial court was faced with the difficult task of resolving incomplete and 

inconsistent evidence presented by appellant and appellee. 
Athens App. No. 21CA2 14

{¶30} We want to first address appellant’s argument that the settlement 

disbursement of $333,333.33 should be considered as a lump sum spousal 

support payment. Appellant does not support his claim with any legal authority. 

Second, the settlement money was contemplated at the time of the divorce. In 

the divorce decree, the trial court mentioned the allocation of potential settlement 

money based on appellant’s assertions:

Plaintiff, individually and as Administrator of his daughter’s 

estate, has filed a medical malpractice action. Defendant is not a 

party to that action and was opposed to its filing. Plaintiff testified that 

he is willing to share any monetary award with Defendant equally.

After the divorce, appellant adhered to his testimony and equally shared the 

$1,000,000 settlement money with appellee. Finally, even after providing 

appellee with her share of the settlement money, appellant continued to pay his 

monthly $3,000 spousal support obligation. This demonstrates appellant did not 

consider the settlement money as spousal support. We therefore conclude that 

the lump sum settlement money is not a spousal support payment and the trial 

court did not commit any error. 

A. Income 

{¶31} A trial court when considering the parties’ income, must consider 

their income “from all sources.” R.C. 3105.18(C)(1)(a). During the hearing, 

appellant and appellee testified and submitted exhibits of their source of income. 

Appellant has two sources of income: monthly social security, $2,659 and net 

pension in the amount of $2,421.29. The evidence presented at the hearing 

demonstrated that his total net monthly income is $5,080.29. Appellee, on the 

other hand, has three sources of income including the spousal support. Without 
Athens App. No. 21CA2 15

the spousal support, appellee receives a gross monthly payment out of her CLC 

annuity of $676, and since reaching the age of 65 in July 2021, her disability

benefit of $1,666, converted to a retirement payment of $1,253.22. Thus, 

appellee’s gross monthly income is $1,929.22 after July 2021.

2

 When multiplying

the parties’ monthly income by 12, appellant’s yearly net income is $60,963.48, 

while appellee’s gross income is $23,150.64. 

{¶32} The trial court did not consider appellee’s two annuities that total 

$271,799.41 as income. We find no error. Appellee does not receive any 

payments from these annuities, and she cannot withdraw any money from them 

until she reaches the age of 72. Moreover, appellant has no issue with the trial 

court considering his annuity as an asset and not deeming it as income. 

{¶33} The trial court calculated appellant’s yearly income as $62,169.60. 

The court deduced that amount based partly on appellant’s gross pension 

payment of $2,521.80. This is consistent with one of the exhibits submitted by 

appellant but not a more recent exhibit. According to an April 2020 payment 

stub, appellant’s gross monthly pension is $2,531.38. The difference is marginal 

but we point it out to reflect the inconsistencies the trial court was tasked to 

resolve.

B. Assets

2 The trial court’s modification order effective January 1, 2021, prematurely reduced appellee’s 

income on the basis of the retirement amount of $1,253.22. Appellant, however, did not 

challenge this aspect of the order in his objection or here. We will therefore proceed with that 

amount as appellee’s income as well. 
Athens App. No. 21CA2 16

{¶34} The trial court properly determined the parties' retirement benefit

assets with appellant having an amount of $688,000 and appellee with 

$554,002.02. We outline below each party’s account and amount:

Appellant Appellee

IRA $455,000 $228,747.39

Roth IRA / Annuity $64,000 $271,799.41

Annuity $169,000 $53,455.22

Total $688,000 $554,002.02

{¶35} The parties’ checking accounts and savings accounts were also 

considered as assets by the trial court. Appellant has two checking and two 

savings accounts, while appellee has one checking and one savings account. 

Both presented exhibits demonstrating the actual amount in the accounts as of 

May/June 2020. Appellant testified, however, that his checking account with 

OUCU has less money because since submitting his accounting, he paid the 

monthly spousal support payment. His checking account with PNC Bank also 

has less money after paying the property taxes, car and home insurance, and 

utilities. At the same time, one of his savings accounts has more money due to 

funds he inherited after the death of his mother. Appellant failed to provide the 

trial court with specific amounts of his accounts at the time of the hearing. Based 

on the exhibits submitted, appellant and appellee’s checking and savings

accounts have the following amounts:
Athens App. No. 21CA2 17

Appellant Appellee

Checking Account 1 - OUCU $20,236 $15,957.68

Checking Account 2 - PNC $16,509 Not Applicable

Savings Account 1 $30,746 $12,118.67

Savings Account 2 $87,000 Not Applicable

Total $154,491 $28,076.35

{¶36} The trial court determined appellant’s account balances as 

$145,591 and appellee with $28,076.35. We are unable to determine with 

certainty the $9,000 reduction in appellant’s balance by the trial court. It could 

represent appellant’s payment of three months of spousal support but without an 

explanation of the trial court’s conclusion as to appellant’s account balance, we 

would be speculating. This is compounded by the trial court’s lack of 

rationalization for not reducing appellant’s PNC Bank checking account with the 

expenses he paid out of that account. The trial court failed to explain with 

sufficient detail the reduction of balance from one of appellant’s checking 

accounts and not the other. 

C. Expenses

{¶37} A trial court is not required to consider the parties’ living expenses 

since it is not one of the enumerated factors in R.C. 3105.18(C)(1). See Copley 

v. Copley, 4th Dist. Pike No. 19CA901, 2020-Ohio-6669, ¶ 28. The trial court, 

however, has the discretion to consider the expenses if it finds the expenses to 
Athens App. No. 21CA2 18

be relevant. Id.; R.C. 3105.18(C)(1)(n). But once the trial court elects to 

consider the parties’ living expenses, it acts unreasonably when it disregards 

expenses without an explanation. Copley at ¶ 30. 

{¶38} In the case at bar, the trial court considered the parties expenses 

under R.C. 3105.18(C)(1)(i), liabilities of the parties, as opposed to any other 

factor per R.C. 3105.18(C)(1)(n). Furthermore, the court determined appellant’s 

total yearly expenses to be $24,000, while appellee’s at $52,616.20, but failed to 

explain with sufficient detail why it did not consider all the expenses submitted. 

Accordingly, we are unable to reconcile that conclusion with the evidence. There 

is no question appellee submitted a more inclusive budget than appellant, in 

which she submitted a separate yearly expense list and a monthly list. Below are 

two tables breaking down the yearly and monthly expenses for each, 

respectively:

Yearly Expenses Appellant Appellee

Car Insurance $1,000 $964

Car Registration Not Submitted $46.48

Car / Golf Cart Maintenance Not Submitted $780

Homeowners Association Fee Not Submitted $75

Homeowners Insurance $8493 $876

Home Maintenance Not Submitted $2,544

3 This amount is based on the exhibit submitted by appellant and not his testimony at the hearing 

of the cost being $936. 
Athens App. No. 21CA2 19

Health Insurance Not Submitted $0.00

Vision Insurance Not Submitted $72.24

Dental Insurance Not Submitted $411.84

Out of Pocket Medical/Dental Not Submitted $1,303.80

Pet Care Expenses Not Submitted $1,133.06

Property Taxes $4,714.47 $2,415.78

Garbage / Recycle $204.60 $162

Federal Taxes Not Submitted $6,950

Travel / Memberships Not Submitted $600

Total $6,768.07 $18,334.20

Monthly Expenses Appellant Appellee

Car Payment $432 $404.76

Cell Phone Not Submitted $51.80

Clothing / Incidentals Not Submitted $100

Credit Card $250 $250

Dining Out Not Submitted $80
Athens App. No. 21CA2 20

Donations / Church4 Not Submitted $100

Electric Bill Not Submitted $175

Entertainment Not Submitted $50

Gasoline Not Submitted $50

Groceries Not Submitted $530

Hair Salon Not Submitted $100

Internet Service $49.99 $77.33

Streaming Services / Cable $115.79 $33.35

Massage Envy membership Not Submitted $60

Medicare Not Submitted $144.60

Mortgage $712.33 $822.86

Prescriptions Not Submitted $410

Savings Not Submitted $0.00

Water / Sewer & Amenity Fee $76.60 $208.30

Timeshare $246 Not Submitted

Total $1,882.71 $3,648

4 The trial court at the initial determination of spousal support discounted appellee’s “charitable 

donations, * * * , cleaning service, and pool maintenance are not necessities and could be 

eliminated or decreased.” 
Athens App. No. 21CA2 21

{¶39} We will begin with appellant’s expenses. When we multiply his total

monthly expenses, $1,882.71, by 12 and adding the total from the yearly 

expense table above, $6,768.07, appellant’s total yearly expenses are 

$29,360.59. Our sum is substantially more than the trial court’s determination of 

$24,000. The discrepancy is due to the trial court’s failure to include all of 

appellant’s expenses and/or explain why they were not considered. The trial 

court following its conclusion of appellant’s expenses at $24,000, states: 

“appellant did not include such things as car insurance[.]” On the other hand, the 

trial court included that expense when outlining the facts in its decision. In 

addition, when reviewing the court’s decision, there is no mention of appellant’s 

monthly credit card expense of $250 and the $246 he pays for his current wife’s 

timeshare property, both of which he testified to at the hearing. The trial court 

failed to provide an explanation for discounting these expenses. 

{¶40} With regard to appellee’s expenses, the trial court made the 

following finding:

Removing estimated federal taxes and home maintenance 

from Respondent’s budget modifies her yearly expenses to 

$8,840.20. Respondent’s monthly expenses total $3,648.00. Total 

these expenses results in annual expenses of $52,616.20.

{¶41} The trial court’s calculation is accurate but lacks sufficient detail why 

only the federal taxes and home maintenance were discounted when appellee 

submitted other expenses that appellant failed to disclose. 

D. Appellant’s Current Spouse’s Income

{¶42} “While a new spouse’s income cannot be considered in determining 

an obligor’s ability to pay spousal support, the court may consider the fact that 
Athens App. No. 21CA2 22

the obligor directly benefits from sharing living expenses with his new 

wife.” Preseren v. Preseren, 8th Dist. Cuyahoga No. 96431, 2011-Ohio-5181, ¶ 

16, citing Feldman v. Feldman, 8th Dist. Cuyahoga No. 92015, 2009-Ohio-4202. 

{¶43} Appellant testified that he remarried and that his new spouse of 

eight years is employed with an annual income of $38,000. The trial court in its 

decision mentioned appellant’s new spouse’s income but we are unable to 

ascertain if it was properly considered as a benefit to appellant for sharing living 

expenses. The trial court did not list the $38,000 when considering appellant’s 

expenses. Rather, prior to its conclusion, the trial court simply stated: “Movant is 

remarried and his current spouse has an annual income of approximately 

$38,000.00.”

{¶44} Exclusive of appellant’s current spouse’s income as an aid to pay 

for his expenses, and based on appellant’s yearly income of $62,169.60 and total 

yearly expenses of $29,360.59, appellant is left with $32,809.01 to pay for the 

spousal support. The modified monthly spousal support of $2,800 multiped by 

12 is $33,600. This leaves appellant in the negative with the requirement to dip 

into his assets. The trial court, however, may have considered appellant’s 

current spouse’s income as a benefit for sharing living expenses but without an 

explanation we are left to speculate. 

E. Standard of Living

{¶45} The trial court under this factor held that “Other than Movant’s 

testimony that he stays home more and doesn’t eat out as much, there was no 

testimony presented that either party’s standard of living has changed since the 
Athens App. No. 21CA2 23

divorce.” Appellant disputes the trial court’s conclusion for failing to consider the 

impact of the COVID-19 pandemic and further that he testified to the best of his 

ability of how his standard of living changed. We disagree and find no error by 

the trial court’s conclusion. 

{¶46} Appellant did not present any evidence of a change in his standard 

of living during direct examination. On cross-examination appellant was asked: 

“Can you tell me how, or explain to the court how your standard of living has 

changed?” Appellant responded: 

Well um, I don’t travel as much. Um, we don’t go out to eat

much any, as far, well now the pandemic there’s not much of that 

anymore anyway, but yeah. Um, so I stay home a lot. I, I’ll just say 

that. As far as my standard of living goes, I, I stay home.

{¶47} Appellant in redirect examination continued to be vague in his 

answer. Appellant’s counsel questioned him “have you done anything that you 

would normally do that you can’t do anymore because you have more 

expenses?” Appellant stated:

Ah, I think probably the biggest thing is traveling, but um, um, 

you know I just do simple things now. If I can go fishing, I’ll go fishing 

cause it doesn’t, you know, but ah, ah, yeah. I’ve, I’ve just slowed 

down in general. I, I, I ah, I really don’t[.]

{¶48} Additionally, when explaining why he retired, appellant testified that 

he elected to retire after eligibility because his employment required him to travel 

a lot and that was a big problem for him. “[T]he burden of proof in a motion 

to modify or terminate spousal support is on the movant; appellee did not have 

the burden to prove any of the factors listed above.” Kemp v. Kemp, 5th Dist. 

Delaware No. 20 CAF 11 0050, 2021-Ohio-2419, ¶ 28. We therefore conclude 
Athens App. No. 21CA2 24

that the trial court did not err in its evaluation of the evidence submitted at the 

hearing and reject appellant’s argument. 

III. REMAND ORDER

{¶49} We have previously held that a trial court acts unreasonably when it 

fails to consider all expenses admitted in evidence without providing an 

explanation: 

Once the court decided to consider the parties’ living 

expenses, it acted unreasonably when it disregarded many of the 

expenses to which Mr. Copley had testified without explanation. We 

can only speculate as to how consideration of this testimony would 

have impacted the court’s determination of the amount and duration 

of the support award. Accordingly, we sustain the assignment of error 

to the extent it asserts that the trial court abused its discretion when 

it made the indefinite spousal support award without considering all 

of Mr. Copley’s testimony regarding his expenses.

Copley, 2020-Ohio-6669, ¶ 30. 

{¶50} In Warner v. Warner, this court reversed a trial court’s spousal 

support order for failing to “fully consider or appreciate the parties’ net monthly 

incomes and reasonable monthly expenses[.]” 4th Dist. Scioto No. 12CA3511, 

2013-Ohio-478, ¶ 13. The Ninth District Court of Appeals similarly reversed a 

spousal support decision holding the trial court acted unreasonably for failing to 

consider husband’s testimony regarding his modified expenses. Uphouse v.

Uphouse, 9th Dist. Summit No. 27623, 2016-Ohio-95, ¶ 10. 

{¶51} In the matter at hand, the trial court failed to provide an explanation 

for its numerical findings, a deduction of $9,000 as to appellant’s checking 
Athens App. No. 21CA2 25

account balance with OUCU, and not allocating all expenses to each party. We 

thus reverse the modification order and remand the matter to the trial court to 

make a new spousal support determination in accordance with our decision. We 

emphasize that “our decision should not be interpreted as a statement on the 

credibility” of the witness’ testimony regarding expenses, “the weight the trial 

court should give that testimony on remand,” or whether the $2,800 spousal 

support award would be appropriate and reasonable based on the evidence in 

this case. Copley at ¶ 31. 

CONCLUSION

{¶52} The trial court failed to explain with sufficient detail why it did not

consider all the expenses submitted in evidence and why the court reduced 

appellant’s checking balance with OUCU. Based on these errors, we conclude 

the trial court’s order modifying the spousal support payment to be unreasonable. 

The order is reversed and the matter is remanded for the court to make a new 

support determination in accordance with law and this decision. 

 

 JUDGMENT REVERSED. CAUSE REMANDED.
Athens App. No. 21CA2 26

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS 

REMANDED. Appellee shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the 

Athens County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the 

date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure.

Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________

 Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.