In re Loewe

• Docket Number: C. A. 30326
• Decision Date: 31 January 2024
• Citation: In re Loewe, 2024 Ohio 323, C. A. 30326 (Ohio App. Jan 31, 2024)
• Parties: DENISE LOEWE Appellee v. MARK LOEWE Appellant
• Court: Ohio Court of Appeals

1

2024-Ohio-323

DENISE LOEWE Appellee v. MARK LOEWE Appellant

C. A. No. 30326

Court of Appeals of Ohio, Ninth District, Summit

January 31, 2024

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR 2016-04-1273

CORINNE HOOVER SIX, Attorney at Law, for Appellant.

JOHN M. DOHNER, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

JILL FLAGG LANZINGER, JUDGE

{¶1} Defendant-appellant Mark Loewe appeals from the judgment of the Summit County Court of Common Pleas, Domestic Relations Division, overruling his motion to modify spousal support. This Court affirms.

I.

{¶2} Mark and plaintiff-appellee Denise Loewe were married in 1987. One child was born during the marriage, who was emancipated before the divorce was filed. The parties divorced in 2017 after thirty years of marriage. Mark and Denise reached a full divorce settlement, and the trial court incorporated the terms of their agreement into the divorce decree. In accordance with the agreement, the court ordered Mark to pay $5,500.00 per month, and half of all bonuses he received, to Denise in spousal support. The court ordered that spousal support would continue until the death of either spouse, or until the court modified or terminated spousal support. The trial court retained jurisdiction over both the amount and duration of Mark's spousal support obligation.

{¶3} On April 7, 2020, Mark filed a motion to terminate or modify his spousal support obligation because he was furloughed during the COVID-19 pandemic. Mark's furlough lasted from April 4, 2020, until June 6, 2020. While his motion remained pending, Mark stopped making spousal support payments. Though furloughed, Mark received unemployment income totaling a pre-tax amount of approximately $10,800. On September 29, the trial court scheduled a status hearing to address Mark's motion and issued an order requiring Mark to pay $27,500 in unpaid spousal support. At the hearing, Mark acknowledged that he had no valid court order or instructions to stop making spousal support payments.

{¶4} Prior to his furlough, Mark worked for Penn National Gaming as Vice President of Racing Operation. His base salary was $200,000 per year, as well as an annual bonus each year based on the performance of facilities he operated. After the divorce, his bonuses approximated $48,000 per year. Mark returned to work at 90% of his pre-COVID base salary. Mark's employer resumed the pre-COVID salary on October 1, 2020.

{¶5} Also on October 1, 2020, Mark submitted his resignation to his employer effective December 17, 2020. At the time of his resignation, Mark was 63 years old. On January 29, 2021, Mark filed his second motion to modify or terminate spousal support. His motion argued that the court should terminate or modify spousal support because he voluntarily retired and because of Denise's receipt of "income from various business interest in the form of passive and earned income." Mark again stopped payments for the second half of December 2020 through April 2022. He did not resume payments until after a court order on April 26, 2022.

{¶6} The court held a hearing on both of Mark's motions to modify or terminate spousal support. Mark and Denise testified at the hearing.

{¶7} Mark testified that he had been employed with Penn National Gaming since February of 2008 and that he had been in the horse racing business for 42 years. Mark testified that he made the decision to retire because "on returning to work, * * * what was expected and what was needed for the company had changed dramatically." Mark testified that "there was more responsibilities, less pay." Mark testified that he was traveling significantly more. Upon returning from the furlough his expenses were capped to $500 weekly, which meant he far exceeded what he was allowed to expense. Mark testified that his new wife lived 390 miles from his place of work. Mark also testified about legislation recently passed which he believed negatively affected the long-term projections for his industry. Mark testified that he did not retire to avoid paying spousal support. He testified, "I felt it was time to take care of myself and my wife and move forward with our lives together, and that is the basis for my retirement."

{¶8} Mark further testified that since retiring he had lived off his savings. Though eligible to withdraw from his 401k and to receive social security, he had chosen not to do so. He owns his home and has no mortgage. Mark owns his car. Mark testified that his monthly expenses include a phone bill, car insurance, groceries, and $800 per month in health insurance. Otherwise, "[w]e are very cautious with our money."

{¶9} Denise also testified, while providing corroborating exhibits, that Mark has continued to stay involved in the horse racing industry since his retirement. Mark continued to work with his new wife, including buying and selling horses.

{¶10} Denise testified she worked part time as a subcontracted bookkeeper, earning $1,000 a month. Additionally, Denise testified that she had passive income from businesses she inherited in 2014. Denise owns her own home in Colorado which she purchased for $360,000 and which had a mortgage balance of $275,000. She also testified that she pays $650 in health care premiums a month with an $8,500 deductible.

{¶11} The trial court granted Mark's first motion to modify spousal support throughout the periods when his income was reduced during the COVID pandemic. In granting the motion to modify spousal support, the trial court reduced Mark's spousal support obligation during his furlough period. The court increased spousal support to 90% of his pre-COVID obligation while he earned 90% of his pre-COVID salary. Upon return of Mark's pre-Covid salary, the court ordered Mark to resume paying spousal support in the amount agreed upon in the divorce decree.

{¶12} The trial court denied Mark's motion to modify or terminate spousal support following his voluntary retirement. When denying Mark's motions to terminate spousal support, the trial court found that Mark retired with the intention of circumventing spousal support and that he was voluntarily underemployed. Mark now appeals raising three assignments of error for our review.

II. ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT IMPUTED PRE-RETIREMENT INCOME TO HUSBAND FOR SPOUSAL SUPPORT PURPOSES AFTER HIS RETIREMENT.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT REFUSED TO CONSIDER WIFE'S INCOME FROM HER FAMILY BUSINESSES IN DETERMINING THE APPROPRIATE AMOUNT OF [SPOUSAL] SUPPORT.

{¶13} In his first assignment of error, Mark asserts that he was not voluntarily underemployed, and the trial court should not have imputed his pre-retirement income for calculation of spousal support. Mark argues it was economically sound for him to retire, he had compelling reasons to retire, and he did not retire for the purpose of defeating his spousal support obligation. Mark also asserts his voluntary retirement at age 63 is an appropriate retirement age. In his second assignment of error, Mark argues that the trial court erred when it refused to consider Denise's income from her family businesses in determining the appropriate amount of spousal support. We disagree.

{¶14} A trial court's decision regarding the modification of spousal support is reviewed for an abuse of discretion, which requires that the court's decision was arbitrary, unconscionable, or unreasonable. R.O. v. P.O., 9th Dist. Summit No. 28929, 2018-Ohio-2587, ¶ 6, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶15} "[Revised Code] Section 3105.18(E) provides that an award of spousal support may only be modified when the trial court determines that either party has experienced a change in circumstances and, with respect to a divorce, when the decree specifically authorizes modification." DiPalma v. Whipple, 9th Dist. Summit No. 30358, 2023-Ohio-1023, ¶ 11. "[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," but the change must be "substantial" such that "the existing award [is] no longer reasonable and appropriate." R.C. 3105.18(F)(1)(a). "In addition, the change in circumstances must not have been considered as a basis for the existing award of spousal support, whether or not it was foreseeable." DiPalma at ¶ 11, citing R.C. 3105.18(F)(1)(b). "[I]f the court finds a change in circumstances, it may then determine the appropriateness and reasonableness of the existing award." Barrows v. Barrows, 9th Dist. Summit No. 21904, 2004-Ohio-4878, ¶ 7.

{¶16} Here, Mark alleges that his voluntary retirement was a substantial change of circumstances that made the existing award no longer appropriate. "Retirement, whether voluntary or involuntary, may constitute a substantial change in circumstances unless it was undertaken early with the intention of circumventing spousal support obligations." DiPalma at ¶ 12, citing Stevens v. Stevens, 2d Dist. Montgomery No. 27761, 2018-Ohio-2662, ¶ 23. "If the spouse retires with the intent of defeating the spousal award, the retirement is considered 'voluntary underemployment,' and the spouse's pre-retirement income is attributed to him." Koch v. Koch, 9th Dist. Medina No. 03CA0111-M, 2004-Ohio-7192, ¶ 21.

{¶17} In its order, the trial court concluded "[Mark] retired for the purpose of avoiding his spousal support obligation to [Denise]." After finding that Mark retired to circumvent his spousal support obligation, the trial court concluded that Mark was voluntarily underemployed. The trial court further concluded that because Mark was voluntarily underemployed there...