In the Matter Of: C. Jane Gonzalez v. John Gonzalez

• Decision Date: 29 December 2000
• Docket Number: 00-LW-6058,99-L-038
• Parties: IN THE MATTER OF: C. JANE GONZALEZ, Petitioner-Appellant v. JOHN GONZALEZ, Petitioner-Appellee CASE
• Court: Ohio Court of Appeals

IN THE MATTER OF: C. JANE GONZALEZ Petitioner-Appellant v. JOHN GONZALEZ, Petitioner-Appellee

No. 99-L-038

00-LW-6058 (11th)

Court of Appeals of Ohio, Eleventh District, Lake County.

December 29, 2000

Civil Appeal from the Court of Common Pleas Domestic Relations Division Case No. 90 DR 001136

HON DONALD R. FORD, P.J., HON. JUDITH A. CHRISTLEY, J., HON ROBERT A. NADER, J.

ATTY LAWRENCE W. CORMAN, 55 Public Square, #2240, Cleveland, OH 44113 (For Petitioner-Appellant)

ATTY. JOSEPH R. ULRICH, 1959 Mentor Avenue, #2, Painesville, OH 44077 (For Petitioner-Appellee)

OPINION

NADER J.

Appellant, C. Jane Gonzales, appeals from the judgment of the Lake County Court of Common Pleas, Domestic Relations Division.

On November 29, 1990, appellant and appellee, John Gonzales, filed a petition for dissolution of marriage requesting the court to approve the separation agreement attached to their petition. The parties' separation agreement, which was incorporated into the dissolution decree granted by the trial court on February 8, 1991, included the following provisions for spousal support:

"IV. Alimony

"A. Husband agrees to pay to the Wife sustenance alimony *** in the amount of $100,000.00 per year, guaranteed ($500,000.00) for a period of 5 years effective September 1, 1990. Said alimony shall be paid in equal monthly installments of $4,531.80, and Husband shall pay the remainder of the alimony at such time as he receives his yearly Lincoln Electric bonus.

***

"Husband further agrees that he shall continue to pay alimony in the sum of $100,000 per year for as long a period after 5 years as he continues to work in the same or similar capacity with approximately the same income or more than he is presently earning. Any retirement benefits received by the Wife under her Qualified Domestic Relations Order from Husband's Retirement Plan during the first five years shall be counted towards Husband's $100,000.00 alimony obligation.

"B. If the Husband is retired at any time after September 1, 1995 through August 31, 2000, he agrees to pay to the wife as and for alimony the sum of one-half of his gross income and deferred income, and retirement income, from all sources, not to exceed $100,000.00 per year. It is agreed that any obligation of Husband payable to Wife shall include any Q.D.R.O. payments made to the Wife. This paragraph, section IV(B) is intended to apply only to the period of years 6 through 10 from the date of execution.

"Husband's obligation to pay Wife one-half of his income from all sources under this Section (B) shall include the gross benefits received under the Lincoln Electric Company Retirement Annuity Program. However, Husband's obligation to pay Wife 50% yearly of the gross Lincoln Electric Retirement Annuity shall be reduced by any amount received by Wife under any Q.D.R.O. yearly."

In the dissolution decree, the trial court did not reserve jurisdiction to modify spousal support.

On August 28, 1995, appellee filed a motion to modify spousal support, arguing that he was unable to pay spousal support as outlined in the parties' separation agreement due to a change in circumstances. On December 29, 1995, appellee filed a motion for relief from judgment, or in the alternative, a motion to clarify the February 8, 1991 dissolution decree. In his motion, appellee argued that because he was forced to retire from Lincoln Electric on November 15, 1994 and suffered a heart attack in the spring of 1995, it was now impossible and inequitable for him to continue to pay spousal support to appellant. On March 1, 1996, appellee filed a motion to dismiss his motion for relief from judgment and asked the trial court to consolidate his motion to modify spousal support with his motion to clarify the dissolution decree.

On May 20, 21, 22, and 23, 1996, the trial court held hearings on various motions pending before it, including appellee's motion to modify spousal support and motion to clarify the dissolution decree. At the hearings, appellee argued that he did not know what was included within the definition of "gross income" as set forth in Section IV(B) of the parties' separation agreement. On May 24, 1996, the trial court denied appellee's motion to modify spousal support; however, on August 20, 1996, the trial court granted his motion to clarify the dissolution decree with respect to its provisions for spousal support. In its judgment, the trial court made the following conclusions of law with regard to appellee's spousal support obligation:

"H. The Court concludes neither party considered including any social security benefits the husband received subsequent to the dissolution of marriage to be included as income for spousal support purposes and that was the intent of the parties at the time they signed the separation agreement.

"I. The Court concludes the parties intended under section B of the separation agreement using the ordinary meaning of the words contained in their separation agreement to include for spousal support purposes all gross income declared by the husband on his tax returns from any and all sources. *** To resolve the confusion and ambiguity outstanding in at least one of the litigants' minds, the Court concludes it was the parties' intention to use as a definition of income for spousal support purposes the IRS code. Thus, whatever income must be declared on husband's tax returns for IRS purposes will be considered for spousal support purposes in the case at bar, and further any exclusions which IRS allows the husband to deduct on his income tax returns from income for tax purposes shall equally apply."

Based upon the above conclusions of law, the trial court made the following order:

"For alimony, (now known as spousal support), purposes the husband's gross income from all sources shall include all income he declares on his tax returns for IRS purposes, and shall exclude those sums which IRS allows him to exclude from his tax returns for tax purposes, provided however, Social Security benefits received by the husband subsequent to the dissolution will not be included for income purposes in determining husband's obligation to the wife for spousal support since this benefit was not contemplated by the parties as an income source when they signed their separation agreement."

Approximately two weeks after receiving the August 20, 1996 judgment from the trial court, appellee transferred assets held in certificates of deposit to his current wife, Charlotte Gonzales. The sum total of the certificates of deposit was approximately $300,000 and came from a settlement that appellee had entered into with Lincoln Electric after his forced retirement.

On March 26, 1997, appellant filed a motion to add Charlotte Gonzales as a new party defendant pursuant to Civ.R. 75(B)(1). On March 27, 1997, appellant filed a motion to show cause why appellee should not be held in contempt of the court's orders of February 8, 1991 and August 20, 1996 for failing to pay the correct amount of spousal support and fraudulently transferring assets to avoid paying spousal support; a motion to modify and/or clarify the judgment of August 20, 1996 to define "gross income" as it is defined in R.C. 3112.215(a); and a motion for attorney's fees.

On September 15, 1997, appellant filed a motion to find that appellee had fraudulently transferred assets to avoid his spousal support obligation. On March 9, 1998, appellant filed a motion to vacate the trial court's judgment filed on August 20, 1996, arguing that it was void ab initio because the trial court had no subject matter jurisdiction to modify the parties' separation agreement.

The trial court denied appellant's motion to add a new party defendant on December 31, 1997. On December 14, 15, and 16, 1998, the trial court held hearings on all of the motions pending before it. The trial court entered the following order with respect to the motions filed by appellant:

"A. Wife's Motion to Show Cause filed 3/26/97, is well taken. Husband is in contempt of the court's prior orders to pay spousal support for the fiscal year 9/1/95 % 8/31/96, pursuant to the court's orders. ***

***

"C. Wife's Motions to Clarify and Modify filed 3/26/98, her Motions filed 9/15/97, for Restraining Order and Transfer, and her Motions filed 3/9/98 to Vacate, are overruled."

From this judgment, appellant assigns the following errors:

"[1.] The trial court erred in modifying the non-modifiable terms and intent of the parties' spousal support agreement by characterizing its order as a 'clarification.'

"[2.] The trial court erred in denying appellant's motion to vacate its August 20, 1996 journal entry as the court lacked subject matter jurisdiction.

"[3.] The trial court erred by failing to find appellee in contempt of the court's order by fraudulently transferring assets to his current wife to avoid paying his spousal support debt.

"[4.] The trial court abused its discretion in denying appellant's motion to add new party defendant under Civil Rule 75(B)(1).

"[5.] The trial court erred in denying appellant full attorney fees and granting appellee attorney fees."

Appellant's first and second assignments of error will be addressed together because they are interrelated. In her first two assignments of error, appellant alleges that the trial court modified appellee's spousal support obligation in the August 20, 1996 judgment entry and that judgment is void because the court had no jurisdiction to modify spousal support. Appellant contends that the trial court improperly modified the provisions of appellee's spousal support obligation by "clarifying" the unambiguous term "gross income."

R.C. 3105.18 governs a trial court's jurisdiction over spousal support and provides in part:

"(E) *** The

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