Carlisle v. Carlisle

Decision Date15 January 2009
Docket NumberNo. 08CA16.,08CA16.
Citation180 Ohio App.3d 569,906 N.E.2d 483,2009 Ohio 215
PartiesCARLISLE, Appellant, v. CARLISLE, Appellee.
CourtOhio Court of Appeals

Vincent A Dugan Jr., Columbus, for appellant.

Brigham M. Anderson, Ironton, for appellee.1


{¶ 1} This is an appeal from a judgment by the Lawrence County Court of Common Pleas denying appellant Charles Carlisle's motion for modification of spousal support. Appellant contends that the trial court erred (1) in dismissing his motion to modify spousal support and (2) in not allowing him to present any evidence showing a change in circumstances. Based upon the facts before us, we agree with the trial court's conclusion that appellant's motion for modification was barred by the doctrine of res judicata. Therefore, we cannot conclude that the trial court abused its discretion in denying appellant's motion for modification of spousal support without holding an evidentiary hearing. Accordingly, we affirm the decision of the trial court.


{¶ 2} The trial court entered a decree of divorce in the case sub judice on February 21, 2001, which ended the parties' 35-year marriage. In the decree, the trial court ordered appellant to pay appellee spousal support in the amount of $1,000 per month, and also ordered that appellee receive a portion of appellant's Tier II railroad retirement benefits. The decree, which was prepared by appellant's divorce counsel, specifically set forth the following with respect to the Tier II railroad retirement benefits and spousal support:

3) That defendant [Appellee herein] shall be entitled to one-half of plaintiff's [Appellant herein] Tier II Railroad Retirement. Provided however should the Defendant receive a divorce spouse's pension there shall be a dollar for dollar offset against her one-half of Tier II Retirement benefits. A Qualified Domestic Relations Order may issue for whatever her share of Tier II Retirement benefits not offset by the divorce spouse pension.

4) That plaintiff shall pay to defendant the sum of $1,000.00 per month as and for spousal support which shall be paid directly to her; however, in the event that he fails to pay said spousal support defendant shall be entitled to request that a deduction order be issued through the Lawrence County Child Support Enforcement Agency. Provided however should defendant receive payment from the Social Security [sic] as caretaker for her disabled and ill son, then there shall be an offset against the spousal support award herein of $1,000.00 per month. The court agrees to maintain continuing jurisdiction in reference to the spousal support obligation, and Tier II Railroad Retirement award in Item 3 above and should there be a material change in circumstances the parties agree that the court may revisit this issue as to offsets mentioned in Item 3 and 4 herein.

{¶ 3} On August 10, 2006, appellee filed a motion in contempt as a result of appellant's decision to reduce the amount of spousal support he was paying from $1,000 to $454 per month, apparently as a result of the fact that appellee began to receive a divorced spouse's pension in the amount of $546.44 per month. In that motion, appellee argued to the court that appellant was improperly offsetting the divorced spouse's pension against the spousal support, rather than the Tier II retirement benefits, as provided for in the divorce decree. Further, that motion also requested a lump sum payment for Tier II railroad retirement benefits that appellant had been receiving since his retirement, half of which should have been paid to appellee in accordance with the divorce decree.

{¶ 4} Appellant responded to this motion with a memorandum contra, as well as a "motion to modify alimony," both of which were filed on August 22, 2006. Appellant represented to the court that he was actually retired at the time of the final divorce hearing and claimed that he was entitled to a modification of the spousal-support award "due to Defendant receiving a divorced spouse pension beginning January 1, 2006." In that motion, appellant argued that the award of spousal support "permits offsets for divorced spouse pension and for any Social Security that Defendant might receive as a caretaker for her disabled and ill son," and argued that the trial court expressly reserved jurisdiction over the spousal support and offsets.2 This motion was prepared and filed by the same counsel that represented appellant during the divorce proceedings, which also prepared the divorce decree ultimately approved by the trial court.

{¶ 5} A hearing was held on the motions on August 23, 2006. At the hearing, appellant briefly testified, but offered no testimony directly related to the issue of modification of spousal support. However, counsel for both parties argued the motions pending before the court. Appellant's counsel argued that there had been a material change in circumstances in that appellee began receiving a divorced spouse's pension. He also argued that the amount of the spousal support was set at $1,000 per month in order that appellee could secure health insurance, which he stated appellee was now receiving through railroad retirement, arguing that this too was a change in circumstances. We note that although a review of the transcript from the final divorce hearing does indicate that the parties discussed the need for appellee to secure health insurance with part of the spousal-support payment, no such language was incorporated into the final divorce decree, which, again, was prepared by appellant's counsel.

{¶ 6} After hearing arguments by counsel for both parties, the magistrate overruled appellant's motion for modification from the bench. A magistrate's decision and recommendation overruling the motion was issued on August 29, 2006, in response to which appellant filed objections to the magistrate's decisions and recommendations on September 11, 2006. On September 28, 2006, appellant's then counsel filed a motion to resign, citing appellant's failure to cooperate and failure to pay him for his services. That motion was granted on October 5, 2006, and on the same day a notice of substitution of counsel was filed, indicating that appellant's current counsel, Vincent Dugan Jr., would be representing appellant.

{¶ 7} On October 13, 2006, the trial court entered a judgment overruling appellant's objections, denying his motion for modification, and granting judgment in favor of appellee on her motion for lumpsum back payment of the Tier II retirement benefits, as well as the spousal-support arrearage. Appellant did not appeal this judgment, but instead filed another motion for modification of spousal support on November 2, 2006. The memorandum in support of the motion again alluded to a change in circumstances related to appellee's receipt of railroad retirement benefits and also stated that "additional facts and financial circumstances" would be presented to the court to demonstrate a change in circumstances warranting a reduction in the monthly spousal support.

{¶ 8} A hearing was held on the motion on January 31, 2008, after a nearly 14-month delay, which is inexplicable from our review of the record. A magistrate's decision was subsequently issued on March 4, 2008, denying appellant's request for modification of spousal support. In its judgment entry, the magistrate explained its reasoning, stating:

When asked what was different between the original motion and the motion that was to be addressed at this most recent hearing (January 31, 2008), it was advised that previous counsel had presented no evidence. While that may be true the issues were nonetheless the subject matter of a final appealable order of October 13. Accordingly, it is hereby considered that plaintiff's motion is a request for a second bite at the apple, and is denied.

In response, appellant filed objections to the magistrate's decision on March 19, 2008, which were overruled by the trial court in an entry dated April 29, 2008.3 It is from this entry that appellant filed his appeal, assigning the following errors for our review.


I. The trial court erred in dismissing plaintiff-appellant's motion to modify spousal support.

II. The trial court erred in not allowing plaintiff-appellant to present any evidence showing a change in circumstances.


{¶ 9} Because appellant's assigned errors are interrelated, we address them together for ease of analysis. Appellant essentially contends that the trial court erred in dismissing his second motion to modify spousal support and in doing so without holding an evidentiary hearing. However, in order to address the issues raised by appellant, we must consider not only the denial of his November 2, 2006 motion for modification, but also the denial of his previous motion for modification, which was filed on August 22, 2006. Though not expressly set forth, in denying appellant's August 22, 2006 motion, the magistrate found, and the trial court agreed, that appellant had not demonstrated sufficient changed circumstances to justify a downward modification of the spousal...

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6 cases
  • Burkart v. Burkart
    • United States
    • Ohio Court of Appeals
    • November 4, 2010 the time of the divorce. Peters v. Peters, 12th Dist. No. CA2009–04–037, 2009-Ohio-5929, 2009 WL 3723008, ¶ 15; Carlisle v. Carlisle, 180 Ohio App.3d 569, 2009-Ohio-215, 906 N.E.2d 483, ¶ 10; Eckstein v. Eckstein, 9th Dist. No. 03CA0048–M, 2004-Ohio-724, 2004 WL 299032, ¶ 22. Second, the......
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    ...on appeal, motion for a new trial, or some other specific rule or law allowing for the presentation of new evidence. Carlisle v. Carlisle, 180 Ohio App.3d 569, 2009-Ohio-215, 906 N.E.2d 483, ¶8, 10-13. Appellants had the opportunity to prove the unsuitability of the parents at the October 1......
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    • May 2, 2022 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 App.3d 734, 736, 702 N.E.2d 949, (2d Dist.1997). "[I]f......
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