[Cite as Boron v. Boron,
2019-Ohio-714.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JULIA BORON : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2018CA00080
JOHN BORON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Domestic Relations
Division, Case No. 2014DR00157
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 26, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAYMOND BULES PAUL HERVEY
Mills, Mills, Fiely & Lucas Day, Ketterer, LTD
101 Central Plaza South 200 Market Ave.North, Ste. 300
200 Chase Tower Canton, OH 44702
Canton, OH 44702
[Cite as Boron v. Boron, 2019-Ohio-714.]
Gwin, P.J.
{¶1} Appellant appeals the May 30, 2018 judgment entry of the Stark County
Common Pleas Court, Domestic Relations Division, adopting and approving the
magistrate’s decision denying his motion for modification or termination of spousal
support and motion for termination of child support.
Facts & Procedural History
{¶2} In 2014, Husband John Boron and Wife Julia Boron dissolved their marriage
with a separation agreement and agreed shared parenting plan. The parties agreed
Husband would pay Wife $400 per month in child support.
{¶3} The separation agreement provides as follows regarding spousal support:
“Husband shall pay to the Wife, as and for Spousal Support, the sum of $1250.00 per
month for a period of ninety-six months subject to earlier termination upon the death of
either party, the Wife’s remarriage or co-habitation with an unrelated adult. The Court
shall retain jurisdiction over the amount of spousal support but not the duration.”
{¶4} On March 19, 2014, the trial court granted the parties’ dissolution and
approved and adopted both the separation agreement and the shared parenting plan.
{¶5} On November 15, 2017, Husband filed a motion to terminate or modify
spousal support and child support. Wife filed a response in opposition to Husband’s
motion on November 28, 2017.
{¶6} The trial court held a hearing on Husband’s motion on February 21, 2018
and April 11, 2018. Jeffrey Merriman (“Merriman”) is the executive vice-president at GBS
Corporation (“GBS”), Husband’s previous employer. Merriman was previously the vice-
president of sales and operations at GBS and was Husband’s manager. Merriman
Stark County, Case No. 2018CA00080 3
testified Husband did not meet his sales quotas for the last three to four years he was
employed at GBS. Merriman stated he sent Husband a letter on April 6, 2015, placing
him on probation. Merriman testified this letter meant that Husband had to sell more
business or else the company would take steps to terminate him at the end of 2015.
Merriman stated this was clearly relayed to Husband and Husband understood he needed
to make changes and improve substantially to stay at GBS long-term. Merriman testified
that one month after he sent Husband the letter, Husband resigned and it was Husband’s
decision to resign.
{¶7} On cross-examination, Merriman testified Husband had the opportunity to
do whatever he could to achieve better results and GBS supported and assisted
Husband’s efforts to obtain sales when he needed it.
{¶8} Husband stated one of his major accounts at GBS had gone bankrupt and
GBS was going to take a share of those production costs from Husband’s commission
checks. Husband testified he knew if he didn’t produce very soon, he would be out the
door, but he didn’t want to leave. However, Husband thought he would be fired if he did
not resign.
{¶9} Husband stated he waited thirty months to file his motion to modify spousal
support because he fully intended to go back to work. Husband did not find many sales
opportunities that he believed were viable because he did not want a job where he would
receive a straight commission and no insurance benefits. Husband worked at Copeco
for eight months. He was given the impression if he didn’t produce at certain numbers,
he would be gone. Husband now works at the deli counter at Acme. Husband testified
he is not financially able to continue paying spousal and child support on his current
Stark County, Case No. 2018CA00080 4
salary. Husband earns $8.75 per hour and works between 28 and 32 hours per week at
Acme.
{¶10} On cross-examination, Husband testified he voluntarily resigned from GBS.
Husband stated his production at GBS had already started to decrease before the
dissolution. Husband believes the sales goals set for him by GBS were reasonable.
Husband testified he made the determination to quit GBS when his opinion was he would
not make the same amount of money anywhere else. Husband stated he was
unemployed for twenty-two months before accepting the job at Copeco. During that
twenty-two months, Husband walked his dog, worked out, and traveled. In Husband’s last
full year at GBS, he made $97,264.28. Husband filed an unemployment claim against
GBS that was denied. Husband voluntarily quit at Copeco because he did not like selling
copiers. Husband testified since he quit GBS he withdrew $300,000 from his retirement
account and did this instead of obtaining a full-time job because he decided to take a
break, enjoy life, gather his thoughts, and move on.
{¶11} Wife testified she opposes any reduction in the support obligation because
she planned to use the money to help with college payment for the parties’ son. Wife
stated she has worked full-time since the dissolution of the marriage. Wife testified that
she rolled her half of Husband’s interest in GBS’s employee stock ownership plan into an
IRA that she has not touched since the dissolution.
{¶12} The magistrate issued an order on April 18, 2018. In his findings of fact, the
magistrate found as follows: at the time of the dissolution, Husband was working for GBS,
had been working there for approximately thirty-five (35) years, and was making
$105,176.78; Wife was making $51,910.33 at the time of the dissolution; on May 8, 2015,
Stark County, Case No. 2018CA00080 5
Husband voluntarily resigned from his job; Husband testified he was about to be
terminated, so he resigned; Husband did not work for the following 21 months because
he decided to “take a break, enjoy life, and gather his thoughts”; Husband eventually took
a job working for Copeco as a salesman and voluntarily left this job; Husband now works
at the deli counter at Acme making $8.75 per hour and works 28-30 hours per week;
Husband is content at this job and does not appear to be looking for anything else;
Husband claims that due to his current financial situation, he can no longer afford to pay
the current spousal and child support obligations; Wife has been employed full time
throughout and recently took a different job that will give her better hours and potential
for increased income, along with health insurance for her and the minor child; Husband
is required under the shared parenting plan to carry health insurance on the minor child
but he fails to do so; Wife made $48,714 in 2017; Husband made $24,623.03 in 2017;
Husband is voluntarily under-employed and income of $97,264.28 is imputed, as this is
the amount Husband made in his final year at GBS.
{¶13} In the conclusions of law and decision portion of the magistrate’s order, the
magistrate stated modification of spousal support is governed by R.C. 3105.18(F) and
modification of child support is governed by R.C. 3119.79. The magistrate stated
Husband failed to show Wife was co-habitating with her paramour. The magistrate found
Husband is voluntarily under-employed and is capable of earning an income more in line
with the income he was making at the time of the divorce. The magistrate found that no
modification/termination of spousal support is warranted at this time. The magistrate
imputed $97,264.28 of income to Husband and found Husband has not demonstrated the
Stark County, Case No. 2018CA00080 6
required deviations in incomes for a recalculation of child support. Accordingly, the
magistrate denied Husband’s motion to modify spousal support and child support.
{¶14} Husband filed objections to the magistrate’s decision on April 27, 2018.
Wife filed a response to Husband’s objections on May 29, 2018.
{¶15} On May 30, 2018, the trial court overruled Husband’s objections and
approved and adopted the magistrate’s decision. The trial court set the matter for an
evidentiary hearing on attorney fees.
{¶16} Appellant appeals the May 30, 2018 judgment entry of the Stark County
Court of Common Pleas, Domestic Relations Division, and assigns the following as error:
{¶17} “I. THE TRIAL COURT ERRED IN APPLYING THE WRONG LEGAL
STANDARD TO A REVIEW OF SPOUSAL SUPPORT OBLIGATIONS.
{¶18} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT
THERE WAS NOT AN INVOLUNTARY DECREASE IN APPELLANT’S INCOME.
{¶19} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FAILING TO REVIEW AND TERMINATE THE CHILD SUPPORT OBLIGATION.”
I.
{¶20} In his first assignment of error, Husband contends the trial court erred in
applying the wrong legal standard to a review of spousal support obligations because the
trial court focused on “voluntarily underemployment” and should have looked at whether
there was an “involuntary decrease” in Husband’s income and whether there was a
substantial change of circumstances. We disagree.
{¶21} In this case, the trial court, it its conclusions of law section, specifically
stated that R.C. 3108.18(F) governs the modification of spousal support and included in
Stark County, Case No. 2018CA00080 7
its entry the text of that code section. It is clear from the findings of the magistrate that
no modification of spousal support was warranted due to Husband’s voluntary under-
employment and capability to earn income in line with what he was making at the time of
the dissolution that the magistrate found Husband failed to demonstrate a substantial
change in circumstances because the decrease in income was voluntary.
{¶22} Similar to this case, in Bittner v. Bittner, the trial court found the appellant left
his job voluntarily, with knowledge of his spousal support obligations, and thus there was
no change of circumstances as outlined in R.C. 3105.18. 5th Dist. Delaware No. 16 CAF
10 0043, 2017-Ohio-7498. We held that the trial court did not abuse its discretion in
finding no substantial change of circumstances because any such change of
circumstance was voluntary and foreseeable and a change in circumstance may not be
purposely brought about by the complaining party. In this case, similar to the Bittner case,
the trial court noted Husband’s testimony that he voluntarily resigned from his job when
he felt he was going to be terminated and noted Husband’s testimony that he did not work
for the following 21 months because he decided to take a break, enjoy life, and gather his
thoughts.
{¶23} Husband further argues if the trial court had reviewed the statutory factors
contained in R.C. 3105.18, the trial court would have concluded a reduction of spousal
support was in order. However, the trial court must consider the statutory factors listed
in R.C. 3105.18(C) once a change of circumstances is found. Here, the trial court did not
find a change in circumstances and thus no analysis of the statutory factors of R.C.
3105.18(C) is required.
Stark County, Case No. 2018CA00080 8
{¶24} We find the trial court did not err in applying the wrong legal standard.
Husband’s first assignment of error is overruled.
II.
{¶25} In his second assignment of error, Husband alleges the trial court’s decision
not to modify or terminate his spousal support obligation was an abuse of discretion and
not supported by the evidence.
{¶26} Decisions regarding the modification of spousal support are reviewable
under an abuse of discretion standard. Booth v. Booth, 44 Ohio St.3d 142,
541 N.E.2d
1028 (1989). In order to find an abuse of discretion, we must determine the trial court’s
decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5
Ohio St.3d 217,
450 N.E.2d 1140 (1983). The burden of establishing the need for
modification of spousal support rests with the party seeking modification. Weddington v.
Weddington, 5th Dist. Licking No. 10CA00023,
2010-Ohio-4967.
{¶27} R.C. 3105.18(E) provides the court does not have jurisdiction to modify the
amount of spousal support unless the court “determines that the circumstances of either
party have changed.” R.C. 3105.18(F) provides a change of circumstances, “includes,
but is not limited to, any increase or involuntarily decrease in the party’s wages, salary,
bonuses, living expenses, or medical expenses, or other changed circumstances.” In
order to constitute a basis for modifying spousal support, the change of circumstances
must be material, not purposely brought about by the moving party, and not contemplated
at the time the parties entered into the prior agreement. Waters v. Boney, 5th Dist. Stark
No. 2008-CA-00127, 2009-Ohio-574; Weddington v. Weddington, 5th Dist. Licking No.
10CA00023,
2010-Ohio-4967.
Stark County, Case No. 2018CA00080 9
{¶28} As an appellate court, we are not fact-finders; we neither weigh the
evidence nor judge the credibility of the witnesses. Our role is to determine whether there
is relevant, competent, and credible evidence upon which the fact finder could base its
judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911.
{¶29} Husband specifically argues he did nothing “wrong” to get fired. There is
nothing in the trial court’s findings of fact and conclusions of law that indicate Husband
did anything “wrong,” or that he was fired. Rather, the trial court found Husband
voluntarily resigned from his job, took a twenty-one month break to enjoy life and gather
his thoughts, and is capable of earning an income more in line with what he was making
at the time of the divorce. Thus, the trial court found Husband was under-employed and
imputed $97,264.28 of income to him. We find the trial court’s determination is supported
by competent and credible evidence.
{¶30} Merriman testified Husband did not meet his sales quota for several years
and was placed on probation in April of 2015. Merriman stated this meant he had to sell
more business or else the company would take steps to terminate him at the end of 2015.
Merriman testified Husband understood he needed to make changes and improve and
that Husband had the opportunity to do whatever he could to achieve better results and
GBS assisted him in his efforts to obtain sales. Merriman stated Husband voluntarily
resigned from his job one month after receiving the letter placing him on probation.
{¶31} Husband acknowledged his production at GBS started going downhill in
2012. Husband agreed that he voluntarily resigned from GBS and that the sales goals
set for him by GBS were reasonable. Husband testified he made the determination to
quit GBS when his opinion was that he would not make the same amount of money
Stark County, Case No. 2018CA00080 10
elsewhere. Husband was unemployed for twenty-two months, during which time he
walked the dog, worked out, and traveled. He also took a break, enjoyed his life, and
gathered his thoughts. Husband acknowledged that in 2014, his last full year at GBS, his
gross income was $97,264.28. Husband testified he now is employed at Acme earning
$8.75 per hour and working 28 to 32 hours per week. When asked about obtaining other
sales jobs, Husband testified he did not want a job with straight commission and no health
insurance.
{¶32} Husband also argues the uncontroverted evidence at trial shows he quit his
job before he was fired and had to go several months without pay. We disagree that the
evidence is uncontroverted. Rather, Merriman testified Husband was placed on probation
in April of 2015, which meant Husband had to sell more business or else the company
would take steps to terminate him at the end of 2015. Merriman stated Husband
understood that he needed to make changes and improve substantially. Merriman
testified Husband had the opportunity to do whatever he could to achieve better results
and GBS supported and assisted Husband’s efforts to obtain sales. While Husband
testified he resigned to avoid being fired, the testimony of Merriman demonstrates
Husband had at least eight months increase his productivity by the end of 2015. Instead,
Husband voluntarily resigned on May 8, 2015. The trial court is vested with the authority
to assess the credibility of the witnesses and is free to believe all, some, or none of
Husband’s testimony. State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967).
Additionally, the trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger,
77 Ohio St.3d 415,
674 N.E.2d 1159 (1997).
Stark County, Case No. 2018CA00080 11
{¶33} In this case, the trial court did not abuse its discretion in finding no substantial
change in circumstances because the decrease in Husband’s income was voluntary and
was brought about by him. Husband’s second assignment of error is overruled.
III.
{¶34} In his third assignment of error, appellant argues the trial court erred and
abused its discretion in failing to review and terminate the child support obligation.
Husband again contends the trial court erred in finding him voluntarily under-employed
and erred in imputing income to him. Based upon our analysis in Husband’s second
assignment of error, we find there is competent and credible evidence to support the trial
court’s decision.
{¶35} We additionally note that, as of June 3, 2018, Husband is no longer paying
child support. Both Husband and Wife were provided a Notice of Child Support
Termination Investigation conducted by CSEA that found child support should terminate
on June 3, 2018. The trial court adopted and approved the CSEA’s recommendations on
July 2, 2018. Husband’s third assignment of error is overruled.
{¶36} Based on the foregoing, Husband’s assignments of error are overruled.
Stark County, Case No. 2018CA00080 12
{¶37} The May 30, 2018 judgment entry of the Stark County Common Pleas
Court, Domestic Relations Division, adopting and approving the magistrate’s decision
denying his motion for modification or termination of spousal support and motion for
termination of child support, is affirmed.
By Gwin, P.J,
Wise, John, J., and
Wise, Earle E., J., concur
