DONALDSON v. DONALDSON (2024)

OPINION

{¶1} Husband, Timothy A. Donaldson [“Husband”] appeals the January 4, 2024 Judgment Entry entered by the Stark County Court of Common Pleas, Family Court Division denying his motion to modify spousal support, finding him in contempt of court for failing to pay spousal support, and awarding the children's income tax dependency exemptions to the Wife, Lori A. Donaldson [“Wife”].

Facts and Procedural History

{¶2} Husband and Wife were married in 1991. The parties have four biological children that are emancipated. T. May 12, 2023 at 15. The parties adopted two minor special needs children while living in New York. Id.

{¶3} Wife worked in the radiology department of a local hospital full-time from 1991 until 1995 when she became part-time to raise the couple's first child. T. May 12, 2023 at 15. Wife ceased working in 1996 in order to take care of the children full time. T. March 10, 2023 at 10; T. May 12, 2023 at 15.

{¶4} Husband obtained a Bachelor's Degree from the University of Akron in 1992. T. March 10, 2023 at 9-10; T. May 12, 2023 at 14. During the duration of the marriage, Husband was employed in research and development in the medical device field for two companies, Zimmer BioMet, and most recently, ConMed. T., March 10, 2023 at 12-13; T. May 12, 2023 at 16-17. He began work as an engineer and rose through the ranks to become director of research and development at ConMed. T. March 10, 2023 at 13-15; T. May 12, 2023 at 17.

{¶5} Because of Husband's work, the family moved several times during the marriage. T. March 10, 2023 at 10-11. The family relocated to Indiana in January 1997, back to Ohio in January 1999, then to New York in September 2009, and back to Ohio in 2015. T. March 10, 2023 at 10-11; T. May 12, 2023 at 17. In 2015, Wife and the children returned to Ohio while Husband remained at his job in New York. T. May 12, 2023 at 19-20. Wife claimed that Husband told her at one point that, “everything is mine,” “none of this is yours,” “do you think I am going to work in a high stress job just to pay you money ․ everything is mine ․” T. May 12, 2023 at 20.

{¶6} A complaint for divorce was filed January 27, 2020. Via a pre-trial report filed June 29 2020, the judge set a trial date for September 2, 2020. On September 2, 2020, the parties appeared to have reached an agreement; however, a property issue arose upon which they could not agree. Magistrate's Order, filed September 2, 2020. Trial was continued until December 2, 2020. Id.

{¶7} On December 2, 2020, the parties reached an agreement on all issues and read the agreement into the record. Magistrate's Decision, filed Dec. 2, 2020. The entry stated that the parties', “separation agreement and the parenting plan are approved, adopted and incorporated into the final decree. [Father's attorney] shall file the Final Decree, Separation Agreement, and Parenting Plan within 45 days.” Id. Husband began making child support and spousal support payments in December 2020. T. March 10, 2023 at 105; T. May 12, 2023 at 37, 54.

{¶8} In 2020, Husband earned a base salary of $194,000, plus a yearly bonus of $52,000, for an aggregate salary of approximately $246,000. T. March 10, 2023 at 83-84.

{¶9} On January 2, 2021, Husband was notified by ConMed that his job was being discontinued. T. March 10, 2023 at 16-17. ConMed offered Husband a retention package to stay on until June 30, 2021 amounting to $48,000 in addition to his salary of $97,475 and yearly bonus of $38,822. Id. at 18; 85; 90. The total income from ConMed for the six-month period ending June 30, 2021 is $184,297. Id. at 90. Husband's 2021 tax return showed wages, salaries and tips of $333,961. Id. at 88.

{¶10} On January 5, 2021, Husband sent Wife an email,

Yes, I am looking for a job as soon as I get a resume together. I talked with HR and they are trying to find me another job within ConMed that fits my qualifications. I think it will be tough and I may have to take a less desirable short term job so I can ensure income and benefits. Just to be clear I am officially employed through June 30th unless I find another job before then.

Regarding child and spousal support I will give you everything that is due to you as soon as the agreement is signed and the funds are released.

I was originally going to deposit the $3,000 in the bank so that the house payment could be made. However, when I looked at the bank account that morning, my paycheck to cover the house payment had been deposited. I did not know for sure when it would hit because of the holiday.

T. June 16, 2023 at 12; Defendant's Exhibit U.

{¶11} The Final Judgment Entry Decree of Divorce was filed by the trial judge on March 16, 2021.

{¶12} On October 22, 2021, Husband filed a motion to modify spousal support citing the involuntary loss of his job as a significant change of circumstance. [Docket Entry No. 57]. By Order filed November 23, 2021, the magistrate set the motion for a pretrial hearing on January 31, 2022. [Docket Entry No. 62]. On January 26, 2022, a Pretrial Report was filed indicating that the pre-trial hearing was waived and the motion to modify was set for an evidentiary hearing on April 27, 2022. [Docket Entry No. 65].

{¶13} On January 31, 2022, Wife filed a motion to modify child tax credits and tax dependency exemptions. [Docket Entry No. 66]. On March 29, 2022, Wife filed a motion for Husband to undergo a vocational assessment. [Docket Entry No. 70]. By Order filed April 28, 2022, the magistrate continued the trial to July 14, 2022. [Docket Entry No. 72].

{¶14} On July 14, 2022, the trial judge dismissed all pending motions without prejudice, and the parties agreed to re-file the pending motions, due to statutory time constraints. [Docket Entry No. 75].

{¶15} On October 11, 2022, Husband filed a motion to modify spousal support, to have Wife comply with the divorce decree requirement that she transport the children for visitation, and for attorney fees and costs. [Docket Entry No. 81]. By Order filed October 12, 2022, the magistrate found that all motions were re-filed and set the matter for hearing on December 30, 2022. [Docket Entry No. 83]. By Order filed November 17, 2022, the magistrate ordered the trial scheduled for February 13, 2023. [Docket Entry No. 84].

{¶16} On February 8, 2023, Wife filed a motion to modify the allocation of tax dependency exemptions. [Docket Entry No. 85]. By entry filed February 10, 2023, the trial judge continued the trial to March 10, 2023. [Docket Entry No. 86]. The magistrate conducted evidentiary hearings on March 10, 2023; May 12, 2023, and June 16, 2023.

Husband's testimony

{¶17} Husband is fifty-five years old and in good health. T. March 10, 2023 at 15. Husband testified that he has ten hours of visitation per month with the two adopted children. T. March 10, 2023 at 7. According to the terms of the separation agreement, Husband agreed to pay Wife $5,824 per month in spousal support. T. March 10, 2023 at 16.

{¶18} Husband has spent his entire career in the medical device field. March 10, 2023 at 25. He has managed a division related to medical devices, kept budgets and worked with other senior executives. Id. Prior to January 2, 2021, Husband testified that he received no indication from ConMed that his position was being terminated. T. March 10, 2023 at 101.

{¶19} Husband testified that he received unemployment compensation from October 2021 until April 2022 totaling approximately $12,000. T. March 10, 2023 at 91. Husband testified that he is currently employed as a cart attendant for a local big box store. T. March 10, 2023 at 28. Husband earns fifteen dollars per hour in his present job. Id.

{¶20} Husband testified that he sent out over 100 resumes, but he does not have a full record of all of his job applications. T. March 10, 2023 at 21; 27. Husband lost the thumb drive on which he saved his job search letters. Id. at 23.

{¶21} Husband testified that he was truthful on his resume and cover letter. T. March 10, 2023 at 77. Husband's cover letter includes a statement that he was offered other positions at ConMed, but turned them down due to “professional and personal reasons”. Id. at 77-79; Exhibit 7. He also included on some of the cover letters that he chose to “semi retire, take some time away from my career to spend time with my family.” Id. at 80.

{¶22} Husband testified that he has worked with, but never had a contract with, a recruiter to assist him with his job search. T. March 10, 2023 at 80. Further, he has never worked with a job coach, and had not had contact with a “head hunter” for more than one year. Id. at 80-81. Husband testified that as of the hearing he had been unemployed for nearly twenty-five months. Id. at 81.

{¶23} Husband owns no real estate. T. March 10, 2023 at 93. Husband had a Fidelity account in the amount of $40,000. Id. at 93. Husband has a 401(K) with $600,000 from the marital division. Id. at 94. Husband has a car payment of $482 per month. Id. at 95. Husband pays $410 per month in child support. Id. at 97.

{¶24} Husband testified that he was never offered a job in a different department or at a different level by ConMed after January 1, 2021. Id. at 7; 10; 13; Plaintiff's Exhibit 22. Husband has continued to seek employment. T. June 16, 2023 at 6-7; Plaintiff's Exhibit 21. Husband updated his resume when applying for these positions. Id. at 11.

Wife's testimony

{¶25} Wife is 52 years of age. Wife has medical issues including atrial fibrillation and sleep apnea. T. May 12, 2023 at 4-6. Wife resides in the marital home with the two minor children, one emancipated child, and her parents. Wife's parents contribute grocery money; there are no other contributions to the household. T. March 10, 2023 at 103-104.

{¶26} Wife received approximately $620,000 in the division of 401(k) accounts. T. May 12, 2023 at 22-23. Wife has not drawn on those accounts. T. March 10, 2023 at 107. At the time of the divorce the home had a mortgage balance of $383, 933. Id. at 110. However, after the divorce, Wife obtained a $45,000 home equity line of credit to put a new deck on the house, repair the sprinkler system, and the pool's retaining wall. Id. at 110-111. The mortgage on the marital home was in forbearance until September of 2023; the home equity line of credit is not in forbearance.

{¶27} Wife receives an adoption subsidy from the State of New York of approximately $36,624 per year. T. March 10, 2023 at 121. Wife receives approximately $5,400 in yearly child support.

{¶28} Husband informed Wife in early January 2021 that he would lose his job at the end of June, 2021. T. March 10, 2023 at 104-105. Husband paid his spousal support from December, 2020 to April, 2022. Id. at 105-106. Wife testified that no payments have been made since April, 2022. Id.

{¶29} Wife purchased a home on Rayanna Street in Massillon in December, 2021, and a home on Delford Avenue in Canton in February, 2022. T. March 10, 2023 at 109-112. Wife purchased the additional homes because she wanted to start a non-profit for battered women. T. May 12, 2023 at 24. A veteran and his family live in the Delford house; Wife does not receive income from the Delford property. Id. Wife's monthly mortgage payment is $987 on this property. T. March 10, 2023 at 122. Another family lives in the Rayanna house and rent is set at $1000; rental payments are inconsistent. T. May 12, 2023 at 26. Wife testified that it costs her money for them to live there. Id. at 26-27. She pays a mortgage of $1,050 a month, and approximately $285 a month in property taxes and insurance on the Rayanna property. Id. at 26. Wife testified that she has $52,000 in credit card debt since Husband stopped paying his spousal support.

{¶30} Wife believes that she will benefit from claiming the children and wants to retroactively receive the COVID benefits for the minor children. Wife believes that because she does not have taxable income she will receive maximum benefits for the children.

Vocational expert testimony

{¶31} Anne Veh testified as an expert witness. She completed a vocational evaluation on Husband and drafted a report on April 19, 2022. Ms. Veh concluded, based on her education, training, and experience, that Husband is capable of participating in day to day operations and is capable, based on his work history and experience, of earning at least $181,636. Husband's high range of compensation could be $208,000-$260,000. T. March 10, 2023 at 40.

{¶32} Ms. Veh acknowledged that Husband applied to several of the positions that she had identified in her report without positive results. T. March 10, 2023 at 45; 52-53. Specifically, Johnson & Johnson. Id. at 45-46; Abbott Laboratories. Id. at 46; Zoll Medical Corporation. Id. at 47-48; Avado's Medical. Id. at 49; Polaris Medical Components. Id. at 50; Montero Medical R&D. Id. at 53. Ms. Veh opined that if a person with Husband's skills is applying for multiple positions and is unsuccessful, that person needs to broaden their job search and include networking and a job coach. Id. at 46; 63-65.

{¶33} Ms. Veh noted that Husband is not limiting himself to one area, but is applying to various jobs in research and development. March 10, 2023 at 51-54. Ms. Veh noted that for some jobs, Husband is over qualified and companies will overlook his application. Id. at 54. Ms. Veh testified that Husband's cover letter is too long and does not help him get his resume in front of a company's hiring personnel. It is helpful for Husband to work with someone in workforce development or recruiting to maximize his interview skills and resume. Id.

{¶34} Ms. Veh testified that it is important for someone at Husband's level of experience, to network, work on interview skills, and develop a strong cover letter with a recruiter or job coach. T. March 10, 2023 at 63-65. Most jobs at the executive level are filled by recruiters or so-called head hunters. Id. at 66.

John Santicerma testimony

{¶35} Due to problems with the remote testimony technology, Counsel submitted a trial deposition for Husband's witness, John Santicerma. T. June 16, 2023 at 3.

{¶36} Santicerma is a search consultant, headhunter and recruiter who specializes in the medical device field. Depo., July 14, 2023 at 4. He first met Husband in 2018. Santicerma and Husband maintained a casual business relationship since 2018. Id. at 5. Santicerma contacted Husband while Husband was employed in management in hopes of placing one of Santicerma's clients with ConMed. Id. at 6. During that call, Husband mentioned that he was being let go by ConMed. Id. at 6. Husband provided Santicerma a copy of his resume and Santicerma provided feedback and offered suggestions for improvement. Id. at 6-7. Mr. Santicerma believed that Husband incorporated his feedback into his resume. Id. at 7. Santicerma testified that he attempted to use some of his resources and contacts to network on behalf of Husband. Id. at 8.

{¶37} Santicerma attempted to reach out to some employers on behalf of Husband. Depo., July 14, 2023 at 10. He did so at least five times. Id. Husband's previous level of employment was that of vice-president or senior director. Santicerma testified that anything below the level of Director would not be considered an executive position. Id. at 8. Santicerma was unable to generate any interest in Husband from prospective employers. Id. at 12-13.

{¶38} Santicerma testified that after COVID in 2020 - 2021, 2022, and 2023, the climate in any manufacturing device field was bad for executives. Depo., July 14, 2023 at 14; 19-20. Santicerma has not been able to place as many people in jobs in the medical device field as he had been before COVID. Id. at 20. He further testified that now “it's a very difficult time for executives to be hired ․” Id. at 22. Santicerma was not able to present Husband with any job opportunities. Id. at 24.

{¶39} Santicerma testified he last spoke to Husband in May, 2023. Depo., July 14, 2023 at 27-28. He also testified that he does not have a contract with Husband. Id. Husband initially would call every two weeks to find out what was happening with the job search. Id. at 29. This went on for three to four months, before the contact became more sporadic. Id. at 31. Santicerma testified that most employers do not review cover letters. Id. at 33.

The magistrate's decision

{¶40} The magistrate found that while Husband's loss of employment was involuntary, further review of the evidence supports a finding that Husband has failed to make “legitimate and diligent” efforts to find “adequate employment.” The magistrate found that the record supports a finding that Husband is capable of earning his previous salary and maintaining employment at an executive level. The magistrate further found that Husband's job search is not adequate for someone in an executive position; Husband voluntarily semi-retired; and Husband did not seek additional opportunities at ConMed because they were not at an executive level. Husband has chosen to work for minimum wage.

{¶41} The magistrate overruled Husband's motion to modify support, found him in contempt of court for non-payment of spousal support, and reallocated the children's tax exemptions to Wife.

The judge overrules Husband's objections to the magistrate's decision

{¶42} On November 1, 2023, Husband filed objections to the magistrate's decision. Wife filed her response on November 15, 2023. Husband filed a reply on December 1, 2023.

{¶43} On January 4, 2024, the judge filed a three page entry overruling Husband's objections. The judge noted,

The Court has made an independent review and analysis of the facts and law, including review of the transcripts and evidence.

Having done so, the Court supplements the Magistrate's Findings of Fact with an analysis of ORC 3105.18(F)[1](b):

The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable.

The parties entered into agreements and appeared before this court on December 3, 2020. The Plaintiff [Husband] received notice that his employment was to be terminated in January, 2021. In Ex. U, the Plaintiff confirmed that he lost his job but indicated that he intends to pay child support and spousal support as agreed once the final agreement is signed. The Final Decree of Divorce and Separation Agreement were not signed, finalized and filed until March 3, [sic.] 2021.

As such, the court finds that the change of circumstances (loss of employment) was clearly foreseeable when the Separation Agreement and Decree was filed.

Order:

The Court, after having made an independent analysis of the facts and the applicable law, hereby supplements the Magistrate's Findings of Fact as set forth above.

1. Having found that the change of circumstances was foreseeable, ORC section 3105.18(F)[1](b) is not met in this case.

2. The Magistrates’ Findings of Fact and Conclusions of Law are adopted, approved and ordered entered as a matter of record;

3. The Objections to the Magistrate's Decision is overruled.

Assignments of Error

{¶44} Husband raises four Assignments of Error,

{¶45} “I. THE TRIAL COURT'S DENIAL OF PLAINTIFF TIMOTHY DONALDSON'S MOTION FOR MODIFICATION OF SPOUSAL SUPPORT IS NOT SUSTAINED BY SUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶46} “II. THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE'S INSERTION OF PURPOSEFUL INTO THE STATUTORY SCHEME FOR CONSIDERING THE MODIFICATION OF SPOUSAL SUPPORT.

{¶47} “III. THE TRIAL COURT ERRED IN FINDING TIMOTHY DONALDSON IN CONTEMPT OF COURT.

{¶48} “IV. THE TRIAL COURT ERRED IN AMENDING THE TAX DEPENDENCY EXEMPTIONS.”

I. & II.

{¶49} In his First Assignment of Error, Husband contends that the trial judge abused his discretion in finding that Husband's loss of job was taken into consideration by the parties at the time the Final Decree of Divorce and Separation Agreement were filed on March 16, 2021, because that finding is against the sufficiency and the weight of the evidence. In his Second Assignment of Error, Husband argues the trial judge erred in adopting the magistrate's insertion of “purposeful” into R.C.3105.18(F)(1)(b). Because we find Husband's First and Second Assignments of Error raise common and interrelated issues we will address the arguments together.

Standard of Review

{¶50} 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); Boron v. Boron, 2019-Ohio-714, 2019 WL 993333, ¶26 (5th Dist.). In addition, our standard of review to determine whether something was contemplated at the time of divorce would also be subject to an abuse of discretion standard. Piliero v. Piliero, 2012-Ohio-1153, 2012 WL 949812, ¶ 19 (10th Dist.), citing Hines v. Hines, 2010-Ohio-4807, 2010 WL 3836130, ¶ 18 (3rd Dist.), and Ballas v. Ballas, 2009-Ohio-4965, 2009 WL 3003982, ¶ 44 (7th Dist.).

{¶51} This Court has recognized that an abuse of discretion can be found where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 2014-Ohio-477, 2014 WL 602264, ¶35 (9th Dist.); In re Guardianship of S.H., 2013-Ohio-4380, 2013 WL 5519847, ¶ 9 (9th Dist.); State v. Firouzmandi, 2006-Ohio-5823, 2006 WL 3185175, ¶54 (5th Dist.).

{¶52} The burden of establishing the need for modification of spousal support rests with the party seeking modification. Boron v. Boron, 2019-Ohio-714, 2019 WL 993333, ¶26 (5th Dist.); Weddington v. Weddington, 2010-Ohio-4967, 2010 WL 4008170 (5th Dist.).

First issue for appellate review: Whether the trial judge abused his discretion in finding the Husband's loss of employment was foreseeable so that R.C. 3105.18(F)(1)(b) is not met

{¶53} Husband first argues that the trial judge abused his discretion by finding that the loss of his job was foreseeable on March 16, 2021, the time of the filing of the Final Divorce Decree and Separation Agreement. [Appellant's brief at 11-13].

{¶54} R.C. 3105.18(E) provides a trial court does not have jurisdiction to modify the amount of spousal support unless the court “determines that the circumstances of either party have changed.” Raymont v. Raymont, 2021-Ohio-3022, 2021 WL 3921304, ¶14 (5th Dist.). [Raymont I].

{¶55} R.C. 3105.18 defines a “change of circumstances,”

(F)(1) For purposes of divisions (D) and (E) of this section and subject to division (F)(2) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as both of the following apply:

(a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate.

(b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable.

Footnote omitted.

{¶56} The record establishes that Husband was informed on January 2, 2021 that ConMed was eliminating his job. Therefore, at the time the parties negotiated the separation agreement, which would have occurred before December 2, 2020, and when the separation agreement was read into the record on December 2, 2020, Husband's loss of employment could not have been contemplated by the parties and taken into consideration in reaching their agreement on the amount of spousal support.

{¶57} The judgment entry filed December 2, 2020 stated that the parties' “separation agreement and the parenting plan are approved, adopted and incorporated into the final decree. [Father's attorney] shall file the Final Decree, Separation Agreement, and Parenting Plan within 45 days.” Thus, the December 2, 2021 entry “is simply prefatory to the issuance of a final order.” Huffman v. Huffman, 2016-Ohio-62, 2016 WL 112694, ¶ 19 (11th Dist.); Beck v. Beck, 2016-Ohio-3012, 2016 WL 2869826, ¶ 19 (11th Dist.); Hassinger v. Hassinger, 2017-Ohio-2962, 2017 WL 2265466, ¶16 (5th Dist.).

{¶58} Pursuant to Civ.R. 53(D)(4)(a), the magistrate's decision is effective when it is adopted by the trial court. Thus, a final judgment is rendered when the trial court adopts the decision or otherwise enters judgment on the decision. See Civ.R. 54 (defining “judgment” as a “written entry ordering or declining to order a form of relief, signed by a judge, and journalized on the docket of the court”). The Rules also provide, “Whether or not objections are timely filed, a court may adopt or reject a magistrate's decision in whole or in part, with or without modification. A court may hear a previously-referred matter, take additional evidence, or return a matter to a magistrate.” Civ. R. 53(D)(4)(b). Therefore, the trial judge retained jurisdiction to modify the terms of the Separation Agreement until the judgment became final by the judge's filing of the Final Judgment Entry Decree of Divorce on March 16, 2021.

{¶59} Both parties were aware in January, 2021 that Husband's job was being terminated. However, in order to justify a finding that the change of circumstances was foreseeable, the trial judge must find that “the change was not contemplated at the time of the original decree.” Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 905 N.E.2d 172 (2009) at para. 2 of the syllabus.

{¶60} The term “contemplated” in the Mandelbaum test has been defined to mean that the matter was “taken into account” by the parties or the court in resolving an issue. Piliero v. Piliero, 2012-Ohio-1153, 2012 WL 949812, ¶ 18 (10th Dist.); Jackson v. Jackson, 2015-Ohio-3825, 2015 WL 5522220, ¶28 (11th Dist.). In Walpole v. Walpole, 2015-Ohio-3238, 2015 WL 4759206, ¶11 (8th Dist.) described “contemplate” in the following manner,

To “contemplate” means more than “think about;” rather, a party had to “intend” that an event happened for it to preclude a modification of spousal support. Kaput v. Kaput, 8th Dist. Cuyahoga No. 94340, 2011-Ohio-10 [2011 WL 86382], ¶ 22. “Courts have misconstrued that standard by applying a test of foreseeability: was the particular circumstance one reasonably to be anticipated? The better test is one grounded in the record, and contemplates a finding that the circumstance is not one that ‘was thoroughly considered at the time of the divorce.’ ” Allread v. Allread, 2d Dist. Darke No. 2011-CA-14, 2012-Ohio-2093 [2012 WL 1657535], ¶ 16, quoting Palmieri v. Palmieri, 10th Dist. Franklin No. 04AP-1305, 2005-Ohio-4064 [2005 WL 1869706], ¶ 19.

{¶61} In contrast to the trial judge, the magistrate noted, “Regardless, the parties agree that the change was not contemplated.” Magistrate's Decision, Oct. 18, 2023 at 15.

{¶62} In the case at bar, because Husband remained employed, there was no change of circumstances until June 30, 2021 when the termination became effective; therefore, Husband was obligated to continue to pay spousal support at the agreed amount. See, T. June 16, 2023 at 12; Defendant's Exhibit U. Husband could not have sought a modification before June 30, 2021 because his income had not changed and the parties did not know what Husband's income would be after June 30, 2021. The change of circumstances was not the fact that Husband's job with ConMed would end June 30, 2021; rather, the change in circumstances in the case at bar, is the potential loss or diminution in Husband's earnings after the termination of Husband's job on June 30, 2021. Nothing in the record before this Court indicates that at the time the divorce became final on March 16, 2021, the parties “thoroughly considered” the possibility that Husband's earning potential would diminish after June 30, 2021. If such were to occur through no fault of Husband's, it would be unjust to deny Husband the opportunity to ask the court to modify the amount of spousal support based upon his earnings.

{¶63} Thus, the trial judge's finding that the change of circumstances was foreseeable is clearly untenable, legally incorrect and reaches an end or purpose not justified by reason and the evidence.

Second issue for appellate review: Whether the trial judge abused his discretion in adopting the magistrate's decision without conducting an independent review as required by Civ.R. 53(D)(4)(d)

{¶64} Husband next contends that the trial judge failed to conduct an independent review to determine whether the magistrate properly determined the factual issues and appropriately applied the law. [Appellant's brief at 13-15].

{¶65} Civ. R. 53(D)(4)(d) provides that in ruling on objections to a magistrate's decision, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Williams v. Tumblin, 2014-Ohio-4365, 2014 WL 4907048, ¶ 35 (5th Dist.). “A presumption of regularity attaches to all judicial proceedings.” State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19. Appellate courts thus presume that a trial court conducted an independent analysis in reviewing a magistrate's decision in accordance with Civ.R. 53(D)(4)(d), and the party claiming that the trial court did not do so bears the burden of rebutting the presumption. Faulks v. Flynn, 2014-Ohio-1610, 2014 WL 1510155, ¶ 27 (4th Dist.). This burden requires more than a mere inference, and simply because a trial court adopted a magistrate's decision does not mean that the court failed to exercise independent judgment. Id.

{¶66} In the case at bar, the trial judge issued a three-page judgement entry in which he referred to the evidence, exhibits, and the record. Further, the trial judge supplemented the findings of the magistrate with his own findings. The magistrate's decision is an in-depth, detailed eighteen-page entry regarding the motions filed. The report contained adequate facts to aid the trial court in independently determining the objections filed by Husband.

{¶67} Therefore, we find that Husband has failed to rebut the presumption that the trial judge conducted an independent analysis in reviewing the magistrate's decision in accordance with Civ.R. 53(D)(4)(d).

Third issue for appellate review: Whether the trial court's finding that Husband did not meet the statutory requirements for a modification of spousal support is against the sufficiency of the evidence

{¶68} Husband next argues that the trial court's decision finding that Husband did not meet the statutory requirements for a modification of spousal support is against the sufficiency of the evidence. [Appellant's brief at 15-21].

Standard of Review

{¶69} Whether the evidence is legally sufficient to sustain a verdict is a question of law. In re: Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, 230 N.E.3d 1123, ¶13. “When applying a sufficiency-of-the-evidence standard, a court of appeals should affirm a trial court when ‘the evidence is legally sufficient to support the jury verdict as a matter of law.’ ” Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, 874 N.E.2d 1198, ¶ 3, quoting Thompkins at 386, 678 N.E.2d 541, quoting Black's at 1433.” Id.

{¶70} A trial court is generally afforded wide latitude in deciding spousal support issues. Grosz v. Grosz, 2005-Ohio-985, 2005 WL 534901, ¶ 8 (10th Dist.), citing Bolinger v. Bolinger, 49 Ohio St.3d 120, 551 N.E.2d 157 (1990), and Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981); Piliero v. Piliero, 2012-Ohio-1153, 2012 WL 949812, ¶ 20 (10th Dist.). An appellate court reviews the modification of spousal support under an abuse of discretion standard. Boron v. Boron, 2019-Ohio-714, 2019 WL 993333, ¶ 26 (5th Dist.); G.P. v. L.P., 2022-Ohio-1373, 2022 WL 1210562, ¶ 74 (5th Dist.) on reconsideration, 2022-Ohio-2156, 2022 WL 2284331, ¶ 74. Abuse of discretion is an extremely high standard; it demands that the trial court exhibited a “perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 614 N.E.2d 748 (1993), citing State v. Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984); Piliero, 2012-Ohio-1153, ¶20. This Court has recognized that an abuse of discretion can be found where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 2014-Ohio-477, 2014 WL 602264, ¶35 (9th Dist.); In re Guardianship of S.H., 2013-Ohio-4380, 2013 WL 5519847, ¶ 9 (9th Dist.); State v. Firouzmandi, 2006-Ohio-5823, 2006 WL 3185175, ¶54 (5th Dist.).

{¶71} 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 or order. Waters v. Boney, 2009-Ohio-574, 2009 WL 321295, ¶17 citing, Roberson v. Roberson, 1993 WL 500325 (5th Dist. Nov. 29, 1993); Accord, Brockmeier v. Brockmeier, 91 Ohio App.3d 689, 693, 633 N.E.2d 584 (1st Dist. 1993); Prell v. Prell, 1986 WL 5788 (2nd Dist. May 15, 1986); Sancho v. Sancho, 114 Ohio App.3d 636, 644, 683 N.E.2d 849 (3rd Dist. 1996); Wall v. Wall, 1999 WL 978666 (6th Dist. Oct. 29, 1999); Lang v. Lang, 1992 WL 380280 (7th Dist. Dec. 18, 1992); Medoff v. Medoff, 1995 WL 363811 (8th Dist. June 15, 1995); Nash v. Nash, 77 Ohio App. 155, 157, 65 N.E.2d 728 (9th Dist. 1945). In this context, it appears that a court's use of the term “purposeful” relates to whether one who through his own volition, became unemployed or underemployed, as opposed to one who loses his job or has a reduction in income through no fault of his own.

{¶72} The burden of establishing the need for modification of spousal support rests with the party seeking modification. Boron v. Boron, 2019-Ohio-714, 2019 WL 993333, ¶26 (5th Dist.); Weddington v. Weddington, 2010-Ohio-4967, 2010 WL 4008170 (5th Dist.).

{¶73} In the case at bar, the record establishes that the Final Decree of Divorce and Separation Agreement were filed on March 16, 2021. Although Husband was notified that his job was being eliminated, he remained employed by ConMed until June 30, 2021. Husband filed a motion to modify spousal support on October 22, 2021. Husband stopped making spousal support payments in April, 2022.

{¶74} The magistrate found that Husband lost his employment through no fault of his own. Husband submitted evidence of his job search efforts and the general state of decline in employment opportunities in the field of medical devices. Wife submitted expert testimony that with Husband's experience, he continued to have the ability to earn substantially more than the $15.00 per hour he was making working at a big box store.

{¶75} Ms. Veh concluded, based on her education, training, and experience, that Husband is capable of participating in day to day operations and is capable, based on his work history and experience, of earning at least $181,636. Husband's high range of compensation could be $208,000-$260,000. T. March 10, 2023 at 40. Ms. Veh reviewed Husband's work history, Husband's resume, salary, wages, skills, the current labor market, and applicable job research. Ms. Veh noted Husband does not have any physical health or mental health concerns that would impact his ability to obtain employment. Ms. Veh testified that Husband is a highly skilled worker.

{¶76} In cover letters that Husband sent to potential employers, Husband represented that he is semi-retired and declined other positions at ConMed. Husband chose not to employ a professional job search firm to assist him, even though he has been looking for work for nearly 25 months. Husband limited his job search to executive level positions focusing mainly on the medical device field.

{¶77} In the case at bar, competent, credible evidence supported the trial court's findings that Husband was voluntarily underemployed. We conclude that a reasonable person could have found that Husband was not making a good faith effort to find suitable employment. We hold, therefore, that there was sufficient evidence to support the trial court's findings that Husband failed to carry his burden to prove that the change in his economic circumstances was not brought about by his own action or inaction.

Fourth issue for appellate review: Whether the trial court's finding that Husband did not meet the statutory requirements for a modification of spousal support is against the manifest weight of the evidence

{¶78} Husband next contends that the trial court's finding that he did not meet the statutory requirements for a modification of spousal support is against the manifest weight of the evidence. [Appellant's brief at 15-21].

Standard of Review

{¶79} The term “ ‘manifest weight of the evidence’ ․ relates to persuasion.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶19. It “concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.’ ” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 684 N.E.2d 668 (1997); State v. Martin, 170 Ohio St.3d 181, 2022-Ohio-4175, 209 N.E.3d 688, ¶ 26. The Ohio Supreme Court held the standard of review for manifest weight of the evidence for criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), is also applicable in civil cases. Eastley, at ¶ 17–19.

{¶80} Weight of the evidence addresses the evidence's effect of inducing belief. Thompkins, at 386-387, 678 N.E.2d 541; State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of appeals reverses a judgment of a trial court on the basis that the decision is against the weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder's resolution of the conflicting testimony. State v. Jordan, 174 Ohio St.3d 347, 2023-Ohio-3800, 237 N.E.3d 58; Thompkins at 387, 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) (quotation marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶25, citing Thompkins.

{¶81} In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact. Eastley, 2012-Ohio-2179, 972 N.E.2d 517 at ¶ 21; In re Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, 230 N.E.3d 1123, ¶ 14. “The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the [trier of fact] is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

{¶82} When there is conflicting testimony presented at trial, a defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented. “ ‘If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.’ ” Seasons Coal Co., Inc. at fn. 3, quoting 5 Ohio Jur.3d, Appellate Review, § 603, at 191-192 (1978); In re Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, 230 N.E.3d 1123, ¶14. In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954), the Supreme Court further cautioned,

The mere number of witnesses, who may support a claim of one or the other of the parties to an action, is not to be taken as a basis for resolving disputed facts. The degree of proof required is determined by the impression which the testimony of the witnesses makes upon the trier of facts, and the character of the testimony itself. Credibility, intelligence, freedom from bias or prejudice, opportunity to be informed, the disposition to tell the truth or otherwise, and the probability or improbability of the statements made, are all tests of testimonial value. Where the evidence is in conflict, the trier of facts may determine what should be accepted as the truth and what should be rejected as false. See Rice v. City of Cleveland, 114 [144] Ohio St. 299, 58 N.E.2d 768 [(1944)].

161 Ohio St. at 477-478, 120 N.E.2d 118. (Emphasis added).

{¶83} The interplay between the presumption of correctness and the ability of an appellate court to reverse a verdict based on the manifest weight of the evidence has been stated as follows, “ ‘Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.’ ” Seasons Coal Co., 10 Ohio St.3d at 80, 461 N.E.2d 1273, quoting C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280-281, 376 N.E.2d 578 (1978). See, also, In re: Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, 230 N.E.3d 1123, ¶15; Frankenmuth Mut. Ins. Co. v. Selz, 6 Ohio St.3d 169, 172, 451 N.E.2d 1203 (1983); In re Sekulich, 65 Ohio St.2d 13, 16, 417 N.E.2d 1014 (1981).

{¶84} If a court of appeals determines that a judgment is against the manifest weight of the evidence, the proper remedy is a remand for a new trial. 2023-Ohio-4703, 230 N.E.3d 1123, ¶16, citing Eastley at ¶ 22. However, “[r]eversal on the manifest weight of the evidence and remand for a new trial are not to be taken lightly.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 31; In re: Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, 230 N.E.3d 1123, ¶16.

{¶85} In the case at bar, the magistrate conscientiously reviewed the conflicting evidence,

The testimony provided by Ms. Veh and Mr. Santicerma highlight to the Court the nuance and sophistication required during an executive level job search. Both Ms. Veh and Mr. Santicerma stressed the importance of job coaches and recruiters. Ms. Veh completed a vocational assessment on Husband. Ms. Veh's testimony highlighted significant flaws in Husband's job search - Husband's cover letter is inappropriate to send to potential employers; Husband is applying for jobs that he is overqualified for; and Husband has failed to fully utilize the services of a recruiter or head hunter. Furthermore, Ms. Veh's testimony highlighted that Husband's training and executive experience hold value and that his age should not be a hinderance to finding employment at his previous level.

Additionally, Ms. Veh noted that Husband maintains an earning capacity ranging from $208,000 to $260,000. Husband did not fully engage the services of Mr. Santicerma over the course of three (3) years; their relationship is best described as casual. Mr. Santicerma's testimony notes the struggle for placement of executives in the medical field since COVID, but his testimony did not indicate why Husband may have difficulties finding employment. Husband, by his own admissions, chose not to engage in a job search from January of 2021 to June of 2021; nothing in the record indicates that he was prohibited from doing so. Husband, by his own admissions, chose not to consider lower level employment at ConMed. Husband, by his own admissions, chose to “semi-retire” for a period of time. Husband undertook these actions with full knowledge of the Court ordered support. Husband has failed to engage in behaviors that would substantially improve his employment status. Husband is free to choose where he works, but cannot then argue that his underemployment is wholly involuntarily when he has not engaged in steps to mitigate the loss. Husband's counsel argues that he has sent multiple resumes and cover letters to various employers. The Court agrees that Husband has certainly “sent” information to employers, but Husband has not engaged in the level of job “searching” that someone of his level should, as testified to by Ms. Veh. The Court finds, that after more than two (2) years, Husband's underemployment is voluntary and a purposeful act. Because Husband's actions are purposeful, the Court cannot find that a change of circumstances exists as required by statute and requisite case law.

Magistrate's Decision, filed Oct. 18, 2023 at 13-14.

{¶86} Upon review of the entire record, weighing the evidence and all reasonable inferences as a thirteenth juror, including considering the credibility of witnesses, we find that the trial court's judgment is supported by some competent, credible evidence going to all the essential elements of the case. Accordingly, the judgment cannot be reversed by a reviewing court as being against the manifest weight of the evidence. Seasons Coal Co., 10 Ohio St.3d at 80, 461 N.E.2d 1273, quoting C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280-281, 376 N.E.2d 578 (1978). See, also, In re: Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, 230 N.E.3d 1123, ¶15; Frankenmuth Mut. Ins. Co. v. Selz, 6 Ohio St.3d 169, 172, 451 N.E.2d 1203 (1983); In re Sekulich, 65 Ohio St.2d 13, 16, 417 N.E.2d 1014 (1981).

{¶87} Husband's First and Second Assignments of Error are overruled.

III.

{¶88} In his Third Assignment of Error, Husband argues the trial court erred in finding him in contempt of court for failing to pay spousal support from April, 2022 to April, 2023.

Standard of Review

{¶89} Generally, contempt proceedings in domestic relations matters, including those based on failure to pay court-ordered spousal support, are civil in nature because the purpose is to coerce or encourage future compliance with the court's orders. Fisher v. Fisher, 2009-Ohio-4739, 2009 WL 2894598, ¶48.

{¶90} “A prima facie case of civil contempt is made when the moving party proves both the existence of a court order and the nonmoving party's noncompliance with the terms of the order.” Jenkins v. Jenkins, 2012-Ohio-4182, 975 N.E.2d 1060, ¶ 12 (2nd Dist.), quoting Wolf v. Wolf, 2010-Ohio-2762, 2010 WL 2473277, ¶ 13 (1st Dist.); Lawler v. Green, 2024-Ohio-2046, 2024 WL 2746804, ¶22 (4th Dist.). Clear and convincing evidence must support a civil contempt finding. See Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980). The Ohio Supreme Court stated that where the degree of proof required to sustain an issue must be “clear and convincing,” means “[t]he measures or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d 23 (1986); Accord, In re: Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, 230 N.E.3d 1123, ¶7.

{¶91} Once a plaintiff establishes a violation, the defendant bears the burden to prove an inability to comply, and absent that proof, a contempt finding is appropriate. Burks v. Burks, 2019-Ohio-4292, 2019 WL 5295571, ¶ 22 (2nd Dist.); Lawler, 2024-Ohio-2046 at ¶22; Cox v. Cox, 2015-Ohio-1660, 2015 WL 1959431, ¶10 (10th Dist.).

{¶92} As a general rule, impossibility of performance is a valid defense against a contempt charge. Cox, ¶22, citing McDade v. McDade, 1990 WL 140572 (10th Dist. Sept. 27, 1990). The party raising impossibility of performance must prove that defense by a preponderance of the evidence. Id. citing Rife v. Rife, 2012-Ohio-949, 2012 WL 760829, ¶ 10, citing Hopson v. Hopson, 2005-Ohio-6468, 2005 WL 3304106, ¶ 9 (10th Dist.), citing State ex rel. Cook v. Cook, 66 Ohio St. 566, 570, 64 N.E. 567 (1902).

{¶93} Absent an abuse of discretion, an appellate court will ordinarily uphold a trial court's contempt decision. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981); Fisher, ¶47; Lawler v. Green, 2024-Ohio-2046, 2024 WL 2746804, ¶23 (10th Dist.). Abuse of discretion is an extremely high standard; it demands that the trial court exhibited a “perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 614 N.E.2d 748 (1993), citing State v. Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984); Piliero, 2012-Ohio-1153, ¶20. This Court has recognized that an abuse of discretion can be found where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 2014-Ohio-477, 2014 WL 602264, ¶35 (9th Dist.); In re Guardianship of S.H., 2013-Ohio-4380, 2013 WL 5519847, ¶ 9 (9th Dist.); State v. Firouzmandi, 2006-Ohio-5823, 2006 WL 3185175, ¶54 (5th Dist.).

Issue for appellate review: Whether the trial court's decision finding Husband in contempt of court for failing to pay spousal support is clearly untenable, legally incorrect, amounts to a denial of justice, or reaches an end or purpose not justified by reason and the evidence

{¶94} The Final Divorce decree and Separation Agreement filed March 16, 2023 provided Husband pay Wife spousal support in the amount of $5,824 per month for thirteen years. It is unrefuted that Husband has not paid spousal support in accordance with the order since March, 2022. Husband had a Fidelity account in the amount of $40,000. T., March 10, 2023 at 93. Husband has a 401(K) with $600,000 from the marital division. Id. at 94. Husband has a car payment of $482 per month. Id. at 95. Husband pays $410 per month in child support. Id. at 97. The magistrate found that Husband did not offer any defense to his failure to pay spousal support. The magistrate found that Husband is voluntarily underemployed.

{¶95} Based on the record before us, we cannot conclude the trial court abused its discretion in finding Husband failed to prove the defense of inability to pay.

{¶96} Husband's Third Assignment of Error is overruled.

IV.

{¶97} In his Fourth Assignment of Error, Husband argues the trial court erred in amending the tax dependency exemptions for the children.

Standard of Review

{¶98} We review the trial court's determination of which parent may claim the minor child as a dependent for federal income tax purposes under an abuse of discretion standard. In re J.H., 2011-Ohio-6536, 2011 WL 6400283, ¶ 13 (7th Dist.); Walley v. Iannizzaro, 2018-Ohio-3939, 119 N.E.3d 974, ¶27 (7th Dist.); Rainey v. Rainey, 2011-Ohio-4343, 2011 WL 3820611, ¶ 38 (12th Dist.).

Issue for appellate review: Whether the trial court's decision reallocating the children's’ tax dependency to Wife is clearly untenable, legally incorrect, amounts to a denial of justice, or reaches an end or purpose not justified by reason and the evidence

{¶99} R.C. 3119.82 governs the allocation of the tax dependency exemption. It reads, in pertinent part:

Except when including a revised amount of child support in a revised child support order as recommended pursuant to section 3119.63 of the Revised Code, whenever a court issues, or whenever a court modifies, reviews, or otherwise reconsiders a court child support order, or upon the request of any party, the court shall designate which parent may claim the children who are the subject of the court child support order as dependents for federal income tax purposes as set forth in section 151 of the “Internal Revenue Code of 1986,” 100 Stat. 2085, 26 U.S.C. 1, as amended.

If the parties agree on which parent should claim the children as dependents, the court shall designate that parent as the parent who may claim the children. If the parties do not agree, the court, in its order, may permit the parent who is not the residential parent and legal custodian to claim the children as dependents for federal income tax purposes only if the court determines that this furthers the best interest of the children and, with respect to orders the court modifies, reviews, or reconsiders, the payments for child support are substantially current as ordered by the court for the year in which the children will be claimed as dependents. In cases in which the parties do not agree which parent may claim the children as dependents, the court shall consider, in making its determination, any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.

{¶100} The magistrate found that “Wife failed to present any plausible reason as to why she needs the tax exemption.” Magistrate's Decision, filed Oct. 18, 2023 at 17. Inexplicably, the magistrate awarded the tax exemption to the Wife in spite of this finding. The court ruled “any potential monies would benefit the children if they remain in Wife's household.” Id.

{¶101} The record establishes that the parties agreed in the separation agreement that Husband would claim the minor children for income tax purposes. At the time of the agreement, Wife was not employed. The agreement of the parties also established that Husband would have ten hours of visitation with the children per month. This has not changed. Nor did Wife request an increase in the amount of child support. In other words, nothing has changed from when the parties entered into the agreement to the time of the hearing on Wife's motion.

{¶102} The record establishes that Husband is employed and has consistently made his child support payments throughout the pendency of this case. The magistrate cannot simply nullify the agreement of the parties by reciting the usual bromides about the “best interest of the children.” The record establishes that the sizable increase in Wife's monthly expenses is not the result of her care of the children; but, rather, her decision to purchase two homes that produce little, if any, income, and do not benefit the children.

{¶103} The record establishes that there has been no change in circumstances sufficient to modify the support order by awarding the income tax dependency claims to Wife. Nor was there a showing that the allocation of the dependency exemptions to Wife was more beneficial to her than to Husband. We therefore conclude the trial court abused its discretion in reallocating the child tax exemptions for the children to Wife for the 2021 tax year and for the subsequent years. Upon remand, the trial judge shall order that the tax exemptions for the 2021 tax year and for the subsequent years shall be allocated to Husband.

{¶104} Husband's Fourth Assignment of Error is sustained.

{¶105} The judgment of the Stark County Court of Common Pleas, Family Court Division is affirmed in part, and judgment reversed and remanded in part, to the trial court for proceedings in accordance with our opinion and the law.

Gwin, J.,

Delaney, P.J., and Baldwin, J., concur