[Cite as Pitrone v. Pitrone,
2025-Ohio-367.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
GREGORY J. PITRONE, :
Plaintiff-Appellee, :
No. 113835
v. :
ANNA MARIE PITRONE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 6, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-18-372203
Appearances:
Murphy Law Offices, LLC, and Troy A. Murphy, for
appellee.
The Law Offices of Mark A. Ziccarelli and Mark A.
Ziccarelli, for appellant.
MICHAEL JOHN RYAN, P.J.:
Defendant-appellant, Anna Marie Pitrone, appeals from the trial
court’s April 2, 2024 judgment, in which the Domestic Relations Court, in relevant
part (1) sustained two objections of plaintiff-appellee, Gregory Pitrone, to a
magistrate’s decision, and (2) granted Gregory’s motion to modify his spousal
support obligation to Anna Marie. After a thorough review of the facts and pertinent
law, we affirm.
Factual and Procedural Background
The record demonstrates that Anna Marie and Gregory were married
in 1982, and their divorce was finalized in December 2018. Under the terms of their
divorce decree, Gregory was ordered to pay Anna Marie $3,000 per month in
spousal support for an indefinite period beginning in January 2019. An addendum
to the parties’ separation agreement provides in relevant part as follows:
Husband shall pay to Wife the sum of $9,000 on December 19, 2018 as
and for temporary spousal support. Such amount is taxable to her and
deductible by him. Additionally, Husband shall pay Wife the sum of
$3,000 per month as and for ongoing spousal support commencing on
January 5, 2019, which sum shall be taxable to Wife and deductible by
Husband. Such spousal support shall not be modifiable until Husband
turns age 66 (October 1, 2021) or unless, notwithstanding Husband’s
age, he becomes unable to work in his profession/occupation due to
illness, injury or both, unless either party dies, or unless Wife remarries
or lives with another person in a relationship similar to marriage.
When Husband reaches age 66 on October 12, 2021, his spousal
support obligation shall become modifiable for any and all of the
reasons set forth above and/or based on changed financial
circumstances of one or both of the parties; provided, however, any
investment income on the assets each party is receiving under this
separation agreement shall not be considered by the Court in making a
determination of changed financial circumstances and only changed
financial circumstances after October 12, 2021 shall be relevant in
determining changed financial circumstances.
Further, the trial court’s judgment of divorce provides that it retains
jurisdiction for certain matters, including spousal support.
During the parties’ marriage, Gregory owned and operated a
business, Rainbow Automatic Sprinkler Systems, Inc. Gregory bought out Anna
Marie’s interest in the business when they divorced. Further, as part of the division
of property in the divorce Gregory paid Anna Marie a total of almost $1.3 million.
In April 2022, Gregory sold the business for $420,000, to be paid at the rate of
$60,000 over the following seven years.
Prior to selling his business, in March 2022, Gregory filed a motion
to modify or terminate his spousal support obligation. His reasons for seeking
termination or modification were that he had turned 66 years old and was retiring.
Gregory’s motion to modify or terminate spousal support was heard before a
magistrate at a hearing in April 2023. At the hearing, Gregory testified at length
about the sale of his business. He further testified that he receives $2,950 in
monthly social security benefits, minus $600 for taxes and Medicare.
Anna Marie testified and submitted her tax returns for the years 2019
through 2021; she also submitted social security earning statements showing
benefits she received from 2016 through 2021. Additionally, Anna Marie submitted
the 2021 tax return for Gregory’s business. Anna Marie testified that she receives
$1,064 monthly in social security benefits.
The magistrate denied Gregory’s motion, finding that because of his
lack of documentation, i.e., tax returns, the evidence was insufficient for a change-
of-circumstances finding. The magistrate further found that the $60,000 annual
payments to Gregory for the sale of his business is income. Gregory filed objections,
two of which challenged the magistrate’s finding that (1) he did not produce
sufficient evidence to meet his burden that a substantial change had occurred to
either modify or terminate his spousal support obligation, and (2) proceeds from the
sale of Gregory’s business did not constitute investment income.
After an independent review, which included the transcript from the
hearing before the magistrate and the exhibits admitted into evidence, the trial court
sustained the two objections.1 Specifically, the court found sufficient evidence to
demonstrate that Gregory proved changed circumstances. The court further found
that funds Gregory received and will continue to receive from the sale of his business
are “return on investments made in the business over the years.” The court
distinguished the “investment income” from “non-investment income” (i.e., social
security benefits) and determined that his monthly support obligation to Anna
Marie should be modified from $3,000 to $654.50. Anna Marie appeals, raising the
following three assignments of error for our review:
I. The trial court erred when it determined that there was a
substantial change in circumstance.
II. The trial court erred in finding that the income that appellee
received from the sale of his business was investment income.
III. The trial court erred in failing to consider the statutory factors
under R.C. 3105.18(C)(1) in modifying the spousal support
award.
1
Gregory attached documents to his objections that were neither introduced nor
proffered at trial. The trial court stated that it did not consider those documents.
Law and Analysis
Anna Marie’s three assignments of error are interrelated and will be
considered together. We first consider the trial court’s jurisdiction over Gregory’s
motion. A trial court lacks jurisdiction to modify a prior order of spousal support
unless the decree of the court expressly retained jurisdiction to make the
modification. Comella v. Parravano, 2014-Ohio-834, ¶ 10 (8th Dist.); see also
R.C. 3105.18. The parties agree that the trial court retained jurisdiction to modify
Gregory’s spousal support obligation.
Our standard of reviewing decisions of a domestic relations court is
generally the abuse-of-discretion standard. Booth v. Booth, 44 Ohio St.3d 142, 144
(1989). This court applies the abuse-of-discretion standard to decisions on motions
to modify spousal support. Mlakar v. Mlakar,
2013-Ohio-100, ¶ 27 (8th Dist.);
Kline v. Kline,
2012-Ohio-479, ¶ 3 (8th Dist.); Abernethy v. Abernethy, 2010-Ohio-
435, ¶ 18 (8th Dist.). An abuse of discretion occurs if a court exercises its judgment
in an unwarranted way regarding a matter over which it has discretionary authority.
Johnson v. Abdullah,
2021-Ohio-3304, ¶ 35.
In addition to a reservation of jurisdiction, in order to modify a
spousal support award a trial court must find that a substantial change in
circumstances has occurred and that the change was not contemplated at the time
of the original decree. Comella, 2014-Ohio-834, at ¶ 10 (8th Dist.). Anna Marie
contends that the evidence was insufficient for the trial court to determine that
Gregory had a change in circumstances warranting a modification to his spousal
support obligation and cites to his lack of documentation. We disagree.
Sworn testimony is evidence. See Parnell v. Zielinski, 2024-Ohio-
1789, ¶ 23 (8th Dist.). Although the magistrate, not the trial court judge, presided
over the hearing, the trial court, not the magistrate, is the ultimate trier of fact.
In re A.S., 2019-Ohio-2359, ¶ 20 (1st Dist.). “‘A magistrate is an arm of the court,
not a separate judicial entity with independent judicial authority and duties.’”
Id.,
quoting State ex rel. Dewine v. Ashworth,
2012-Ohio-5632, ¶ 37 (4th Dist.). The
trial court must make its own factual determination by undertaking an independent
analysis of the issues. In re A.S. at
id. In this case, the magistrate did not make a
determination about Gregory’s credibility; rather, the magistrate focused on
Gregory’s lack of documentation.2
In addition to Gregory’s testimony, the trial court relied on the
business tax return Anna Marie submitted. In considering the evidence, the trial
found that in 2021, Gregory had income in the amount of $260,422, and in 2022,
he had income from his social security benefits in the amount of $28,476. On this
evidence, the trial court found a change of financial circumstances.
2
The situation here is different from an instance where a magistrate makes a
credibility determination. Specifically, it has been held that when “a magistrate
comments on credibility and the trial court does not take additional evidence . . . ‘the
judgment of the magistrate on issues of credibility is, absent other evidence, the last word
on the issue for all practical purposes.’” Mandelbaum v. Mandelbaum, 2007-Ohio-6138,
¶ 103 (2d Dist.), quoting Quick v. Kwiatkowski,
2001-Ohio-1498, *4 (2d Dist.).
The trial court’s computation did not include the monies from the sale
of Gregory’s business, which the court deemed as a return on his investment and
subject to exclusion for the purpose of modifying or terminating spousal support
under the parties’ separation agreement. The trial court did not cite any case law in
support of its finding, and we have not found any directly on point either. The trial
court did, however, cite the Black’s Law Dictionary definitions of “investment,”
“salary,” and “ordinary income”:
Investment. An expenditure to acquire property or assets to produce
revenue; a capital outlay.
Salary. An agreed compensation for services — especially professional
or semiprofessional services — usually paid at regular intervals on a
yearly basis, as distinguished from an hourly basis.
Ordinary income. For individual income-tax purposes, income that is
derived from sources such as wages, commissions, and interest (as
opposed to income from capital gains).
April 2, 2024 trial court judgment, quoting Black’s Law Dictionary (7th Ed. 1999).
In considering the definitions, the trial court did not abuse its
discretion in parsing out income and investment monies. The court apportioned
“distributions” Gregory received from the business while he was still working at the
business as income and excluded monies he received after he sold the business as
investment funds.
Anna Marie contends the trial court’s apportionment of $28,476 in
annual social security income for Gregory, whereas Gregory testified that he
received $28,200, is indicative of the trial court’s abuse of discretion. We disagree
and note that higher figure (by $276) actually inures to Anna Marie’s benefit.
We also find the cases Anna Marie cites are distinguishable from this
case. For example, she cites Pickens v. Pickens, 2019-Ohio-216 (4th Dist.). In
Pickens, as part of the parties’ divorce decree, the husband was also ordered to pay
monthly spousal support to the wife and over 1.2 million dollars to equalize the
division of property. The husband was allocated the family farm, which included
the marital home; however, the wife continued to live in the marital home for nine
years following the divorce. According to the husband, the wife let the property fall
into disrepair and it necessitated over $10,000 in repairs. Presumably because of
the disrepair, the husband withheld approximately $13,000 from a bank account
that was allocated to the wife in the divorce; he also had not reimbursed her
approximately $7,000 for medical and dental care for their minor child.
Both parties filed contempt motions; the wife’s contempt request was
based on the withheld and unreimbursed monies and the husband’s contempt
request was based on the damages to the marital property. The husband also
requested that he be granted a set off against his obligations for the wife’s holdover
and damages of his real property.
The husband also filed a motion to terminate his spousal support
obligation. As ground for his motion, the husband contended that there was a
significant change in the wife’s financial circumstances. According to the husband,
the wife had “‘been living off her property settlement, interest and . . . spousal
support for nine years,’” and because that money was not previously available to her
“‘[t]here has to have been a change in her financial circumstances from the time of
the original order.’” Pickens at ¶ 24, quoting the husband.
The Pickens Court upheld the trial court’s denial of the husband’s
motion to terminate his spousal support obligation, stating that the wife’s
receipt of the property distribution proceeds and of the spousal support
payments up until the time of the filing of the motion to
terminate/modify spousal support, do not warrant the termination or
modification of the support order. While the receipt of the property
distribution proceeds and prior payments of spousal support amount
to a significant amount of money, those proceeds were taken into
account by the trial court as a basis for the existing award when it was
established. Thus, receipt of those proceeds does not amount to a
change in circumstances as contemplated under R.C. 3105.18(F).
Id. at ¶ 26.
Pickens is distinguishable from this case. The husband in Pickens was
arguing that the property settlement at the time of the parties’ divorce constituted a
change in circumstances because the wife had been living off of the settlement funds
—which she previously did not have — since the time of the divorce. The ground on
which the husband sought a modification of his spousal support obligation in
Pickens was entirely different from the ground on which Gregory sought
modification in this case.
Another case Anna Marie cites, Meister v. Meister, 2000 Ohio App.
LEXIS 4751 (8th Dist.), is also not helpful to her position. In Meister, the husband
owned and operated a veterinarian practice and animal hospital at the time of the
parties’ marriage. The couple had four children during the course of their marriage.
While still married, the husband became ill, retired, and sold his practice. He
received a down payment for the sale, and the remainder was to be paid in
installments. Thereafter, the wife filed a divorce complaint.
Among other things, the trial court awarded the husband the
proceeds from the sale of his practice and hospital as his separate property. The trial
court ordered the husband to pay child and spousal support. The wife appealed,
challenging, in part, the amount of child and spousal support the trial court
awarded. The Meister Court agreed with the wife as it related to the child support
order: “any profit [the husband] received from the sale of his practice and the real
estate associated with it should be included as income for the purposes of calculating
child support.” Id. at *14.
Meister is distinguishable from this case in that the sale of the
disputed practice occurred while the parties were still married. In this case, Gregory
did not sell his business until more than two years after the parties’ divorce and after
Anna Marie had already received her marital portion of the value of the business.
And Anna Marie does not contend that the change in Gregory’s financial
circumstances was contemplated at the time of the parties’ divorce, and we find no
evidence that it was.
Finally, Anna Marie contends that the trial court’s judgment should
be reversed because the court failed to consider the statutory factors under
R.C. 3105.18(C)(1). We disagree. Gregory’s motion to modify his support obligation
was based on a change of financial circumstances because of retirement, and the
court considered that. There is no requirement for a trial court to list and comment
upon each factor under R.C. 3105.18 when addressing spousal support. See Cox v.
Cox, 2007-Ohio-5769, ¶ 26 (3d Dist.), citing Blackledge v. Blackledge, 2004-Ohio-
2086, ¶ 21 (5th Dist.).
On this record, the trial court did not abuse its discretion in modifying
Gregory’s spousal support order. Anna Marie’s three assignments of error are
therefore overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
______
MICHAEL JOHN RYAN, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
DEENA R. CALABRESE, J., CONCUR
