Domestic Courts Still Must Find ‘Substantial Change’ in Circumstances to Modify Spousal Support Order
2007-2422 and 2008-0375. Mandelbaum v. Mandelbaum, Slip Opinion No. 2009-Ohio-1222.
Montgomery App. No. 21817, 2007-Ohio-6138. Judgment affirmed and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., concurs in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1222.pdf 
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(March 24, 2009) In a 7-0 decision announced today, the Supreme Court of Ohio held that the partial listing of what can be considered as a change of circumstances in R.C. 3105.18 does not alter the requirement that a trial court must find a substantial change in circumstances before modifying a prior order of spousal support.
The Court’s opinion, authored by Justice Terrence O’Donnell, affirmed a decision of the 2nd District Court of Appeals.
Stanley and Frances Mandelbaum of Montgomery County were divorced in 2000. In its final decree, the Montgomery County Domestic Relations Court ordered Stanley to pay Frances $1,500 per month in spousal support. The decree also included provisions agreed to by the couple continuing the jurisdiction of the trial court over the spousal support agreement, giving each party a right to seek an adjustment of the amount of support based on a change in the financial circumstances of either party, and indicating that it was both parties’ intention that their combined income continue to be allocated equally between them.
In 2005, Stanley filed a petition in the trial court seeking a reduction in his monthly spousal support payments based on changes in his financial obligations. A magistrate issued an opinion finding that the net change in Stanley’s income and expenses since the original decree did not justify a reduction. Stanley filed objections to the magistrate’s findings, and Frances filed a reply to those objections, asking the court to retain her current level of spousal support. The trial court found that the magistrate’s recommendation was based on an incorrect calculation of the couple’s current finances, and issued an order modifying Stanley’s monthly support obligation to $925.
Frances appealed the trial court’s action. On review, the 2nd District Court of Appeals held that the trial court erred in failing to consider whether a change in circumstances of the parties was substantial and not contemplated at the time of the prior order. The 2nd District subsequently certified that its ruling with regard to the required threshold findings was in conflict three other Ohio appellate districts, which had ruled in similar cases that under 1986 and 1991 amendments to the state’s domestic relations laws, a court has jurisdiction to modify a prior spousal support order based on any change in the financial circumstances of the parties. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.
Writing for the Court in today’s decision, Justice O’Donnell noted that there was no express provision in the Ohio Revised Code authorizing modifications to spousal support orders prior to 1986, but said state courts had evolved a common law standard for considering such modifications through decisions handed down over nearly 100 years. Justice O’Donnell said that standard required courts to begin their analysis with a strong expectation of finality in spousal support awards, but authorized them to grant modifications where the court found there had been a significant or “drastic” change in the financial circumstances of the parties, and that change had not been foreseen at the time of the original decree. As a representative statement of that common law standard, Justice O’Donnell quoted the 10th District Court of Appeals’ decision in Leighner v. Leighner (1986), holding that: “‘Where modification of an existing order for the payment of sustenance alimony is requested, the threshold determination is whether the order can be modified, which requires a finding of a change in circumstances since the order was entered. The change in circumstances must be substantial and must be such as was not contemplated at the time of the prior order.’”
When the legislature enacted R.C. 3105.18(D) addressing modification of support orders in 1986, Justice O’Donnell wrote, the statute codified the common law requirement of a “change in the circumstances” of the parties but “its foremost purpose was to declare that a trial court lacks jurisdiction to modify the amount or terms of an order of spousal support unless a provision in either the divorce decree or the separation agreement ... specifically authorizes modification. With this addition to R.C. 3105.18, the legislature never suggested an intent to alter longstanding case law requiring a substantial change in the parties’ circumstances. Moreover, courts uniformly continued to apply this requirement after the 1986 amendments.”
In 1991, Justice O’Donnell noted, the legislature added new language to R.C. 3105.18 stating that a “change in circumstances” of a party to a spousal support order “includes but is not limited to any increase or voluntary decrease in a party’s wages, salary, bonuses, living expenses or medical expenses.”
While most of the state’s appellate districts continued to apply the common law requirements of a “substantial and unforeseen” change in circumstances before considering support modifications, Justice O’Donnell wrote, “In Kingsolver v. Kingsolver (2004) ... the Ninth District Court of Appeals first held that the 1991 amendments to R.C. 3105.18 eliminated the requirement of a substantial and unforeseen change in circumstances, stating: ‘[I]f the Ohio legislature envisioned a more restrictive standard for the phrase a “change of circumstances,” it would have included such terms as “substantial,” “drastic,” “material,” or “significant” in the 1991 amendments. Instead, however, the legislature chose to use the term “any,” which refers to changes that have an effect on the economic status of either party.’ The appellate court also noted, ‘[T]he statutory amendments to R.C. 3105.18 do not require that economic changes be reasonably unforeseeable. We find that such a limitation on the phrase ‘change of circumstances’ was also, therefore, not contemplated by the Ohio Legislature.’
In rejecting the analysis of the 9th District and two other appellate districts that have subsequently adopted Kingsolver’s less-restrictive standard for modifying spousal support orders, Justice O’Donnell wrote: “We recognize that the 1991 amendments to R.C. 3105.18 did not codify the common law requirement that a trial court is required to find that a substantial and unforeseen change in circumstances has occurred before modifying a prior order of spousal support. But the absence of language to that effect does not demonstrate that the General Assembly intended to abrogate what had become well established law. As we stated in State ex rel. Hunt v. Fronizer (1907) ... ‘the general assembly will not be presumed to have
intended to abrogate a settled rule of the common law unless the language used in a statute clearly supports such intention.’ Furthermore, with the exception of three appellate districts since 2004, courts
have consistently applied this common law requirement for more than 15 years since the 1991 amendments, and the legislature has not responded by further amending R.C. 3105.18.”
He also noted that, while the 1986 amendments to the support statute stated the legislature’s specific intent to respond to a prior Supreme Court decision, the 1991 legislation did not include a similar statement of intent to modify the common law standard of a substantial and unforeseen change in circumstances.
“Based on the foregoing,” Justice O’Donnell wrote, “we conclude that although R.C. 3105.18(F) sets forth a partial listing of what can be considered as a change of circumstances to include ‘any increase or involuntary decrease in the party’s wages, salary, bonuses, living expenses, or medical expenses’ for purposes of establishing trial court jurisdiction, it does not alter the requirement that a trial court must find a substantial change in circumstances before modifying a prior order for spousal support.”
Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp. Justice Paul E. Pfeifer concurred in judgment only.
Contacts
Mark E. Stone, 937.431.9990, for Stanley Mandelbaum.
Charles D. Lowe, 937.222.8091, for Frances Mandelbaum.