Meilen v. Meilen , 2013 Ohio 4883 ( 2013 )

[Cite as Meilen v. Meilen, 2013-Ohio-4883.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Hilary K. Meilen, :
Plaintiff-Appellee, :
No. 13AP-66
v. : (C.P.C. No. 04DR-06-2540)
Robert A. Meilen, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 5, 2013
Babbitt & Weis LLP, Gerald J. Babbitt and C. Gustav
Dahlberg, for appellee.
Isaac, Brant, Ledman & Teetor, LLP, Frederick M. Isaac,
Christopher J. Geer and Joanne S. Peters, for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
KLATT, P.J.
{¶ 1} Defendant-appellant, Robert A. Meilen, appeals a judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, that modified the
monthly amount of spousal support owed to plaintiff-appellee, Hilary K. Meilen. For the
following reasons, we affirm in part and reverse in part.
{¶ 2} The trial court granted the parties a divorce in a March 6, 2007 judgment.
During their 19-year marriage, the parties had four children, three of whom were minors
at the time of the divorce. Hilary stayed home to care for the children, while Robert
No. 13AP-66 2
worked in the information technology field. Robert became very successful in his career,
which allowed the family to enjoy a high standard of living.
{¶ 3} At the time of the divorce, Robert was employed by TSA Corporate Services,
Inc. ("Sports Authority") as its chief information officer. Robert's yearly salary was
$399,000. Hilary was not employed, but had an earning capacity of $18,000 to $20,000
per year.
{¶ 4} In May or June of 2003, Hilary was diagnosed with breast cancer. She
underwent multiple surgeries and aggressive chemotherapy. By February 2005, Hilary
showed no signs of cancer. However, at the time of the divorce, Hilary continued to take
anti-cancer medication. While undergoing cancer treatment, Hilary was covered by
health insurance obtained through Robert's employer. Hilary expected to pay high
premiums in order to secure her own health insurance, if she could obtain any at all.
{¶ 5} In the divorce decree, the trial court awarded Hilary spousal support in the
amount of $12,000 per month, plus a processing charge. Additionally, the trial court
ordered Robert to pay Hilary 30 percent of any yearly bonuses that he received. The trial
court determined that Robert's obligation to pay Hilary a percentage of his yearly bonus
would terminate on December 31, 2016, but the trial court did not set a termination date
for the monthly spousal support payment. All spousal support would terminate on the
death of either party or Hilary's re-marriage. The trial court retained jurisdiction to
modify or terminate the spousal support.
{¶ 6} In April 2011, Sports Authority terminated Robert's employment without
cause. Given the depressed state of the job market in Robert's field, Robert anticipated
that he would have difficulty obtaining a new job, much less a job with a salary
commensurate to his Sports Authority salary. Robert, therefore, moved to modify or
terminate his spousal support obligation on April 12, 2011.
{¶ 7} At a trial before a magistrate, Robert requested (1) a reduction of his
monthly spousal support obligation to $6,000, and (2) the establishment of a date on
which the monthly spousal support payments would terminate. In response, Hilary
argued that no substantial change in circumstances occurred, so the trial court lacked
No. 13AP-66 3
jurisdiction to modify or terminate the spousal support award.1 Alternatively, Hilary
contended that, if the court found a substantial change in circumstances, the existing
$12,000 per month award remained reasonable and appropriate. Hilary also asserted
that the trial court should deny Robert's request to set a date for the termination of
spousal support.
{¶ 8} During the March 2012 trial, Robert testified regarding his discharge from
Sports Authority and his new job as chief information officer for Hunter Douglas, Inc.
Sports Authority paid Robert his salary until May 5, 2011. Robert started his new job with
Hunter Douglas on June 13, 2011. During 2011, Robert's yearly salary from Hunter
Douglas was $260,000. Robert received a $10,000 raise on January 1, 2012, making his
2012 yearly salary $270,000. Even with this raise, Robert earned over $100,000 less per
year than he earned at Sports Authority.
{¶ 9} Robert's employment contract with Sports Authority had required Sports
Authority to pay Robert one year's salary in the event that his employment was
terminated without cause. Pursuant to that contract and in compensation for Robert's
execution of an expanded non-compete agreement, Sports Authority paid Robert
$519,347 and transferred to him title to his company vehicle. Robert received the
payment and vehicle in May 2011. Combining the severance payment with Robert's
ordinary income (including bonuses), Robert earned a total of $1,074,859.90 in 2011.
{¶ 10} Like Robert, Hilary also began a new job after the divorce. In August or
September of 2008, Hilary began employment with the New Albany-Plain Local School
District. Hilary's 2011 salary was $17,541. Hilary had obtained health insurance through
her employer at a cost of $40 per month. Fortunately, Hilary remained cancer free and
no longer needed anti-cancer medication.
{¶ 11} In his decision, the magistrate found that the termination of Robert's
employment with Sports Authority and his acceptance of a new, lower-paying job with
Hunter Douglas constituted a substantial change in circumstances. The magistrate,
therefore, concluded that the trial court had jurisdiction to modify the spousal support
1 As we will explain below, a trial court lacks jurisdiction to modify a previously entered spousal support
award unless the court retained jurisdiction to modify the support in the original divorce decree, and the
court determines that a substantial change in circumstances has occurred since the divorce. R.C.
3105.18(E) and (F).
No. 13AP-66 4
award. After considering the R.C. 3105.18(C) factors, the magistrate recommended that
(1) the trial court increase the monthly spousal support payment to $19,000 effective
April 12, 2011, and (2) the trial court decrease the monthly spousal support payment to
$8,000 effective January 1, 2012. Thus, for the eight-and-one-half month period between
April 12 and December 31, 2011, Robert would have to pay Hilary $7,000 more a month
than the original $12,000 award. Thereafter, Robert would pay Hilary $4,000 less per
month.
{¶ 12} Both Robert and Hilary objected to the magistrate's decision. In relevant
part, Robert argued that an increase of spousal support, in the absence of any request to
do so, was unsupported by law and reversible error. Robert also asserted that the
magistrate erred by not setting a termination date for the monthly spousal support
payments. In a December 27, 2012 judgment, the trial court overruled all the objections
and adopted the magistrate's decision.
{¶ 13} Robert now appeals the December 27, 2012 judgment, and he assigns the
following errors:
[1.] After finding a substantial change of circumstances not
contemplated by the parties at the time of their divorce,
including a reduction in Defendant-Appellant's income and
earning ability, the trial court erred by increasing Defendant-
Appellant's spousal support obligation from $12,000 to
$19,000 per month from April 12, 2011 to December 31, 2011
in the absence of any written motion or notice to the parties
that it intended to do so.
[2.] The trial court erred by refusing to establish a
termination date for spousal support.
{¶ 14} By his first assignment of error, Robert argues that the trial court erred
when it increased the amount he had to pay in monthly spousal support. Robert sets forth
two reasons for this error: (1) the trial court lacked either the subject-matter or personal
jurisdiction necessary to enter the judgment, and (2) the judgment contravened his due
process right to know the scope of the proceedings and have an opportunity to present
evidence on all issues within that scope. We reject the former argument, but we accept
the latter.
No. 13AP-66 5
{¶ 15} Robert first argues that the trial court lacked subject-matter jurisdiction to
increase the spousal support award because Hilary did not request an increase. To
support his argument, Robert relies on R.C. 3105.18(B), which states that, "[i]n divorce
* * * proceedings, upon the request of either party and after the court determines the
division or disbursement of property under section 3105.171 of the Revised Code, the
court of common pleas may award reasonable spousal support to either party." Robert,
however, is looking to the wrong statutory provision. R.C. 3105.18(B) applies to the initial
divorce proceedings, wherein a request for spousal support triggers the trial court's duty
to determine, in the first instance, whether spousal support is appropriate and reasonable.
See, e.g., Alexander v. Alexander, 10th Dist. No. 09AP-262, 2009-Ohio-5856, ¶ 31-33;
Grody v. Grody, 10th Dist. No. 07AP-690, 2008-Ohio-4682, ¶ 25-28. Here, the initial
divorce proceedings are over; the trial court complied with R.C. 3105.18(B) when it
ordered spousal support in the March 6, 2007 divorce decree.
{¶ 16} After a divorce decree becomes final, R.C. 3105.18(E) determines whether a
trial court has the jurisdiction to revisit and modify a prior order of spousal support.
Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222. According to R.C.
3105.18(E), that jurisdiction hinges upon whether: (1) "the court determines that the
circumstances of either party have changed," and (2) "the decree or a separation
agreement of the parties to the divorce that is incorporated into the decree contains a
provision specifically authorizing the court to modify the amount or terms of * * * spousal
support." Robert does not dispute that, here, both of those criteria are satisfied. Thus, we
conclude that the trial court possessed the subject-matter jurisdiction necessary to enter
judgment modifying the spousal support order.
{¶ 17} Next, Robert argues that the trial court lacked jurisdiction to increase the
spousal support award because Hilary did not invoke the trial court's continuing
jurisdiction pursuant to Civ.R. 75(J). According to Civ.R. 75(J), "[t]he continuing
jurisdiction of the court shall be invoked by motion filed in the original action, notice of
which shall be served in the manner provided for the service of process under Civ.R. 4 to
4.6." Ordinarily, failure to serve a non-moving party pursuant to Civ.R. 75(J) deprives the
trial court of personal jurisdiction over that party. Fisher v. Fisher, 10th Dist. No. 01AP-
1041, 2002-Ohio-3086, ¶ 33. Here, however, the trial court did not need to acquire
No. 13AP-66 6
personal jurisdiction over Robert through service because it already had personal
jurisdiction over him by virtue of his motion. When Robert moved for a modification of
the spousal support award and served Hilary, he properly invoked the trial court's
continuing jurisdiction to modify the spousal support award. The trial court then had
personal jurisdiction over both Robert and Hilary, and thus, the judgment modifying the
spousal support award bound both parties.
{¶ 18} Robert's final argument succeeds where his first two did not. In his final
argument, Robert contends that the trial court violated his due process rights by
increasing the monthly spousal support amount when Hilary had not requested that
relief. We agree.
{¶ 19} As Robert points out, the primary issue litigated at trial was whether a
decrease of spousal support was reasonable and appropriate. Robert argued in favor of a
decrease and Hilary against. Unlike Robert, Hilary did not move for a modification of the
spousal support award. Moreover, at no point prior to trial, during her opening
statement, or in her closing argument, did Hilary advocate for an increase of spousal
support. Rather, Hilary merely asserted that the trial court should maintain the amount
of spousal support awarded in the divorce decree.
{¶ 20} We find this case similar in many respects to Fisher v. Fisher, 5th Dist. No.
2008 CA 00049, 2009-Ohio-4739. There, the ex-husband moved to modify or terminate
spousal support. Soon thereafter, the ex-wife filed a motion for contempt alleging that the
ex-husband had failed to pay for her health insurance as the divorce decree had ordered.
The trial court denied the ex-husband's motion but granted the wife's motion. Although
the ex-wife had not requested an increase in spousal support, the trial court ordered the
ex-husband to pay an extra $160 per month in spousal support to compensate the ex-wife
for her increased health insurance costs. On appeal, the ex-husband argued that the trial
court erred by increasing the monthly spousal support amount. The Fifth District Court
of Appeals agreed. The court held that the trial court could not order an increase in
spousal support when the wife had not moved for such relief and the issue was not tried
by the express or implied consent of the parties. Id. at ¶ 54.
{¶ 21} The Fisher court relied on Civ.R. 15(B) to reach its holding. Here, the
parties also cite to Civ.R. 15(B) as the determinative law. Civ.R. 15(B) implements the
No. 13AP-66 7
axiomatic rule "that cases are to be decided on the issues actually litigated at trial." State
ex rel. Evans v. Bainbridge Twp. Trustees, 5 Ohio St.3d 41, 44 (1983). Pursuant to Civ.R.
15(B):
When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may
be made upon motion of any party at any time, even after
judgment. Failure to amend as provided herein does not
affect the result of the trial of these issues.
{¶ 22} Although Civ.R. 15(B) refers to pleadings, not motions, we find it applicable
to this case. Generally, the Ohio Rules of Civil Procedure govern divorce actions, Civ.R.
75(A), and nothing in Civ.R. 75 specifically exempts divorce actions from the application
of Civ.R. 15(B). Moreover, a motion invoking a domestic relations court's continuing
jurisdiction operates much like a complaint. When a party files such a motion, it must
serve the motion as if it was a complaint. Civ.R. 75(J). Like a complaint, the motion
notifies the non-moving party and the domestic relations court of the issues the moving
party seeks to resolve. Civ.R. 15(B), therefore, determines when the scope of the motion
must expand to include issues not raised in the motion.
{¶ 23} Here, Hilary acknowledges that she did not put the issue of increased
spousal support before the court by filing her own motion to modify. However, Hilary
argues that the increase issue was tried by implied consent. Hilary cites as evidence of
Robert's implied consent the fact that Robert did not argue that the trial court could only
reduce the amount of spousal support. Hilary also points to her argument that the high
amount of Robert's 2011 income militated against any change in the original monthly
spousal support amount. According to Hilary, this argument implicitly urged the trial
court to take Robert's severance payment into account when making an award of spousal
support.
{¶ 24} Neither of Hilary's arguments establishes implied consent. To determine
whether the parties impliedly consented to litigate an issue, courts consider whether the
parties recognized that an unpleaded issue entered the case. Evans at 45-46. "Under
Civ.R. 15(B), implied consent is not established merely because evidence bearing directly
No. 13AP-66 8
on an unpleaded issue is introduced without objection. Rather, it must appear that the
parties understood the evidence was aimed at the unpleaded issue." Id. at 46. This
limitation protects the parties' due process right "to know what is being tried, or at least to
[have] the means to find out." Jimenez v. Tuna Vessel "Granada," 652 F.2d 415, 420 (5th
Cir.1981); accord Carlisle Equip. Co. v. United States Secy. of Labor & Occupational
Safety, 24 F.3d 790, 795 (6th Cir.1994) (where notice that a new issue was entering the
case was inadequate, the appellant's due process rights were violated).2 "A party must
have actual or constructive knowledge of the scope of proceedings, as well as an adequate
opportunity to present evidence on all issues embraced therein, before being deemed to
have implicitly consented to litigate matters outside the pleadings and pre-trial order."
United States v. Texas, 523 F.Supp. 703, 722 (E.D.Tex.1981). Thus, due to the
requirements of procedural due process, trial of unpleaded issues by implied consent is
not lightly inferred. Grand Light & Supply Co., Inc. v. Honeywell, Inc., 771 F.2d 672, 681
(2d Cir.1985); accord Deere & Co. v. Johnson, 271 F.3d 613, 622 (5th Cir.2001) (" '[I]t is
not often that amendments are allowed after the close of evidence, since the opposing
party may be deprived of a fair opportunity to defend and offer any additional
evidence.' ").
{¶ 25} Here, Hilary cites to nothing that indicates that either she or Robert
recognized that the increase issue was in play at trial. According to Hilary, this court can
find implied consent in Robert's failure to announce that the parties were not litigating
the question of increased spousal support. Robert, however, had no reason to make such
an announcement because Hilary neither filed her own motion to modify nor argued,
either explicitly or implicitly, that the monthly spousal support award should be
increased. If we were to accept Hilary's argument, a moving party would have to list all
issues not before the court or risk a finding that that party impliedly consented to trial on
those issues. This is not the law. Because the evidence establishes that neither party
understood the trial to include the increase issue, no implied consent to litigation of that
issue arose.
2 The relevant portion of Civ.R. 15(B) is similar to Fed.R.Civ.P. 15(b)(2). Consequently, like the Supreme
Court of Ohio did in Evans, we look to federal precedent construing Fed.R.Civ.P. 15(b) to interpret Civ.R.
15(B).
No. 13AP-66 9
{¶ 26} As we stated above, "cases are to be decided on the issues actually litigated
at trial." Evans at 44. Here, the only motion before the court was Robert's motion.
Robert undisputedly requested a decrease in spousal support. Thus, the issue before the
trial court was whether to grant or deny a decrease in spousal support. The trial court
could not grant any relief beyond that requested by Robert in the absence of notice to the
parties that such relief might be granted and an opportunity for the parties to present
argument and evidence regarding such relief. See Bellamy v. Bellamy, 110 Ohio App.3d
576, 580-81 (6th Dist.1996) (due process precluded the trial court from modifying child
support when the only motion before the court was a motion for contempt); Wright v.
Wright, 9th Dist. No. 13526 (Nov. 9, 1988) (due process prevented the trial court from
decreasing child support when the only motion before the court was a motion for a
judgment awarding the ex-wife the amount of child support in arrears). As Robert did not
receive that notice and opportunity, the trial court erred in ordering an increase in the
monthly spousal support award. Accordingly, we sustain Robert's first assignment of
error.
{¶ 27} By Robert's second assignment of error, he argues that the trial court
abused its discretion in refusing to set a date on which he could stop making monthly
spousal support payments. We disagree.
{¶ 28} Under the general rule regarding duration of spousal support, "where a
payee spouse has the resources, ability and potential to be self-supporting, an award of
[spousal support] should provide for the termination of the award, within a reasonable
time and upon a date certain, in order to place a definitive limit upon the parties' rights
and responsibilities." Kunkle v. Kunkle, 51 Ohio St.3d 64 (1990), paragraph one of the
syllabus. However, this general rule does not typically apply in cases of marriages of long
duration, to parties of advanced ages, or to homemaker-spouses with little opportunity to
develop meaningful employment outside the home. Id. Although there is no bright-line
rule to determine how long a marriage must last in order to qualify as a long-term
marriage, courts have entered spousal support awards of unlimited duration only for
marriages of 19 years or longer. DiBari v. DiBari, 10th Dist. No. 08AP-1050, 2009-Ohio-
3437, ¶ 14; MacMurray v. Mayo, 10th Dist. No. 07AP-38, 2007-Ohio-6998, ¶ 9.
No. 13AP-66 10
{¶ 29} Here, the parties were married 19 years. Hilary was a homemaker-spouse
who has, in recent years, developed employment outside the house. However, Hilary's
employment will not allow her to attain a standard of living comparable to that which the
parties had when married. Under similar circumstances, this court has previously
determined that a spousal support of indefinite duration is not an abuse of discretion.
Ehni v. Ehni, 10th Dist. No. 94APF10-1530 (Apr. 25, 1995); Addy v. Addy, 97 Ohio
App.3d 204, 209-10 (10th Dist.1994); Frye v. Frye, 93APF09-1218 (Mar. 31, 1994);
Schmidt v. Schmidt, 10th Dist. No. 91AP-547 (Oct. 8, 1991). Consequently, we find no
abuse of discretion in the trial court's failure to set a termination date for Hilary's spousal
support. We thus overrule the second assignment of error.
{¶ 30} For the foregoing reasons, we sustain Robert's first assignment of error and
overrule Robert's second assignment of error. We affirm in part and reverse in part the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
We remand this cause to that court so that it may enter judgment in accordance with this
decision.
Judgment affirmed in part; reversed in part;
cause remanded with instructions.
SADLER and McCORMAC, JJ., concur.
McCORMAC, J., retired, of the Tenth Appellate District,
assigned to active duty under authority of Ohio Constitution,
Article IV, Section 6(C).