CourtListener opinion 2831053

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[Cite as Skerness v. Skerness, 2015-Ohio-3467.]

 COURT OF APPEALS
 COSHOCTON COUNTY, OHIO
 FIFTH APPELLATE DISTRICT

VICKI ANN SKERNESS : JUDGES:
 : Hon. W. Scott Gwin, P.J.
 Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
 : Hon. Craig R. Baldwin, J.
-vs- :
 :
EDWARD G. SKERNESS : Case No. 2015CA0002
 :
 Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Coshocton County
 Court of Common Pleas, Case No.
 2009DV0506

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 24, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT E. WEIR BRIAN W. BENBOW
Frase, Weir, Baker 605 Market Street, Suite 1
and McCullough Co., L.P.A Zanesville, OH 43701
305 Main Street
Coshocton, OH 43812
 Coshocton County, Case No. 2015CA0002 2

Baldwin, J.

 {¶1} Defendant-appellant Edward Skerness appeals from the January 15, 2015

Decision and Order of the Coshocton County Court of Common Pleas granting plaintiff-

appellee Vicki Ann Skerness' Motion to Modify Spousal Support.

 STATEMENT OF THE FACTS AND CASE

 {¶2} Appellant Edward Skerness and appellee Vicki Ann Skerness were

married on November 19, 1988. No children were born as issue of such marriage.

 {¶3} On June 12, 2009, appellee filed a complaint for divorce against appellant.

Pursuant to a Judgment Entry filed on October 19, 2009, the trial court ordered

appellant to pay appellee $1,045.00 per month in temporary spousal support plus

poundage. At the time, appellant was earning approximately $60,000.00 a year and

appellee $12,000.00 a year.

 {¶4} Appellant, on December 18, 2009, was found guilty of various crimes and

was sentenced to four years in prison.

 {¶5} A Judgment Entry Decree of Divorce was filed on November 16, 2010 that

incorporated the parties' October 11, 2010 Separation Agreement. Article Two of the

Separation Agreement states as follows:

 Husband shall pay spousal support to Wife as follows:

 temporary spousal support in the amount of One Thousand

 Forty Five and 00/100 Dollars ($1,045.00) per month,

 effective until March 31, 2010, and thereafter the order shall

 be modified and reduced to One Hundred ($100.00) per

 month as a temporary order until July 31, 2010. Upon the
 Coshocton County, Case No. 2015CA0002 3

 payment of $3,535.00 provided for in ARTICLE THREE, part

 E., Husband will have paid all amounts ordered as

 temporary spousal support; and therefore, no amount shall

 be preserved as an arrearage accumulating under the

 temporary orders. Commencing August 1, 2010, Husband

 shall pay spousal support to Wife in the amount of One

 Hundred ($100.00) per month plus 2% processing charge for

 a period of one hundred seven (107) consecutive months.

 Said payment shall be made by Husband to Wife through the

 Child Support Enforcement Agency of Coshocton County

 (CSEA). The Court shall retain jurisdiction to modify the

 amount of spousal support, but it shall not retain jurisdiction

 to modify the duration of spousal support.

 The parties acknowledge that the amount of spousal

 support was determined in consideration of the following

 factors. Husband is currently incarcerated in a state penal

 institution with his only source of income being a reduced

 amount of Veterans Administration benefits, which may be

 restored to a greater amount upon Husband's release. The

 Court has determined that Husband's Veterans

 Administration benefits shall not be considered an asset for

 property division purposes and shall not be subject to

 attachment for the payment of spousal support; either during
 Coshocton County, Case No. 2015CA0002 4

 Husband's incarceration or upon his release; however, said

 benefits may be considered as income for purpose of

 computing Husband's gross income as a factor in

 determining modification of spousal support. In

 consideration of the reduced amount of spousal support to

 be paid as a result of Husband's reduced income due to

 incarceration, Wife shall receive a disproportionately greater

 property division amount of two-thirds (2/3) of the marital

 property to Husband's one-third (1/3) of the marital property.

 In the event a motion to modify and increase spousal

 support is filed by Wife, Husband may argue that the

 disproportionate property division should be a factor to be

 considered by the Court.

 {¶6} On August 25, 2014, appellee filed a motion seeking an increase in

spousal support. Appellee, in her motion, alleged that appellant had been released from

prison and that his income had increased "above the amount he received while

incarcerated." A hearing on such motion was held on December 11, 2014.

 {¶7} At the hearing, appellant testified on cross-examination testified that he

was released from prison on December 18, 2013. He testified that before his prison

sentence, he earned approximately $60,000.00 a year in 2008 working for Stone

Container and had made over $50,000.00 at the time of his criminal trial in 2009.

Appellant testified that he was in contact with Central Pension about his Stone

Container pension and testified that he would receive approximately $1,500.00 a month
 Coshocton County, Case No. 2015CA0002 5

from that pension. Appellant testified that he received $1,912.00 a month in Social

Security benefits and $1,525.55 in benefits from the Veteran's Administration ("VA").

When asked, appellant stated that he did not have any other sources of income or

potential income. He was not working at the time of the hearing and had not sought any

employment since his release from prison. He offered no evidence of his monthly living

expenses. Appellant testified that he did not receive his VA benefits while in prison.

 {¶8} Appellee testified that during the four years that her ex-husband was in

prison, she did not receive spousal support. She testified that she worked at a bank

earning $12.15 an hour and she received approximately $600.00 a month in pension

benefits. Appellee testified that she worked 37 hours a week. According to appellee,

her monthly living expenses were $2,058.00 and she had to dip into some of the

retirement benefits that she received in the divorce to make ends meet.

 {¶9} At the conclusion of the hearing, the trial court asked the parties to file

post-hearing closing arguments. Pursuant to a Decision and Order filed on January 15,

2015, the trial court found that there had been a substantial change in circumstances

and ordered that appellant pay spousal support to appellee in the amount of $600.00 a

month retroactive to August 25, 2014.

 {¶10} Appellant now raises the following assignments of error on appeal:

 {¶11} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

ORDERING AN UPWARD MODIFICATION OF SPOUSAL SUPPORT WHEN THERE

WAS NO SUBSTANTIAL CHANGE IN CIRCUMSTANCES, WHICH MADE THE PRIOR

SPOUSAL SUPPORT ORDER NO LONGER REASONABLE UNDER R.C. 310518(F).
 Coshocton County, Case No. 2015CA0002 6

 {¶12} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

ORDERING AN UPWARD MODIFICATION OF SPOUSAL SUPPORT WHEN

APPELLANT HAD NO INCOME BY WHICH THE TRIAL COURT COULD LAWFULLY

TAX SPOUSAL SUPPORT. THE TRIAL COURT'S JANUARY 15, 2015 JUDGMENT

ENTRY AWARDING AN UPWARD MODIFICATION OF SPOUSAL SUPPORT WAS

ACCORDINGLY AGAINST BOTH THE WEIGHT AND SUFFICIENCY OF THE

EVIDENCE.

 I

 {¶13} Appellant, in his first assignment of error, argues that the trial court erred

in modifying spousal support when there was no substantial change in circumstances.

 {¶14} Modifications of spousal support are reviewable under an abuse of

discretion standard. Kunkle v. Kunkle, 51 Ohio St.3d 64, 554 N.E.2d 83 (1990). In order

to find an abuse of discretion, we must determine that the trial court's decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

 {¶15} R.C. 3105.18 provides guidelines for the modification of spousal support

as follows:

 (E) If a continuing order for periodic payments of

 money as alimony is entered in a divorce or dissolution of

 marriage action that is determined on or after May 2, 1986,

 and before January 1, 1991, or if a continuing order for

 periodic payments of money as spousal support is entered in

 a divorce or dissolution of marriage action that is determined
 Coshocton County, Case No. 2015CA0002 7

 on or after January 1, 1991, the court that enters the decree

 of divorce or dissolution of marriage does not have

 jurisdiction to modify the amount or terms of the alimony or

 spousal support unless the court determines that the

 circumstances of either party have changed and unless one

 of the following applies:

 (1) In the case of a divorce, the decree or a

 separation agreement of the parties to the divorce that is

 incorporated into the decree contains a provision specifically

 authorizing the court to modify the amount or terms of

 alimony or spousal support ...

 (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
 Coshocton County, Case No. 2015CA0002 8

 award when it was established or last modified, whether or

 not the change in circumstances was forseeable.

 (1) In determining whether to modify an existing order

 for spousal support, the court shall consider any purpose

 expressed in the initial order or award and enforce any

 voluntary agreement of the parties. Absent an agreement of

 the parties, the court shall not modify the continuing

 jurisdiction of the court as contained in the original decree.

 {¶16} There is no express requirement that the domestic relations court's order

granting or denying a motion to modify spousal support reexamine in toto the factors

listed in R.C. 3105.18(C)(1) that apply to an initial determination of spousal support.

Kucmanic v. Kucmanic, 119 Ohio App.3d 609, 613, 695 N .E.2d 1205, 1208 (8th Dist.

1997). The domestic relations court should set forth the basis for its decision with

enough detail to permit proper appellate review. Id., citing Graham v. Graham, 98 Ohio

App.3d 396, 399–400, 648 N.E.2d 850, 851–853 (1994).

 {¶17} In the case sub judice, the trial court, as stated in the Separation

Agreement, retained jurisdiction over the amount of spousal support. The trial court, in

its January 15, 2015 Decision and Order modifying spousal support, noted that

appellant, who was incarcerated at the time of the parties' Separation Agreement, had

been released from prison, had failed to seek employment and was currently receiving

$5,000.00 a month from various sources of income. Appellant testified that during his

incarceration, he did not receive his VA benefits, which would have been his only
 Coshocton County, Case No. 2015CA0002 9

source of income at the time. At the hearing, appellee testified that during the four years

that appellant was incarcerated, she was not receiving spousal support.

 {¶18} We find, based on the foregoing, that the trial court did not err in finding

that there was a substantial change in circumstances justifying an upward modification

of spousal support.

 {¶19} Moreover, a modification of spousal support upon appellant's release from

prison was clearly contemplated by the Separation Agreement. The Separation

Agreement stated that appellant would be receiving a reduced amount of VA benefits

while in prison and that the benefits were his only source of income. The Separation

Agreement further stated that appellant's VA benefits "may be restored to a greater

amount upon [appellant's] release" and that "said benefits may be considered as

income for purposes of computing [appellant's] gross income as a factor in determining

a modification of spousal support."

 {¶20} Appellant's first assignment of error is, therefore, overruled.

 II

 {¶21} Appellant, in his second assignment of error, argues that the trial court

erred in finding that appellant had $5,000.00 in income "when all three potential sources

of income were barred from consideration as a matter of law."

 {¶22} Appellant specifically argues that, under law, appellee could not be

awarded any amount of his VA pension or his social security benefits.

 {¶23} R.C. 3105.18(B) allows trial courts, upon a party's request and after

property distribution, to award reasonable spousal support. R.C. 3105.18(C) states, in

relevant part, as follows :
 Coshocton County, Case No. 2015CA0002 10

 {¶24} In determining whether spousal support is appropriate and reasonable,

and in determining the nature, amount, and terms of payment, and duration of spousal

support, which is payable either in gross or in installments, the court shall consider all of

the following factors:

 {¶25} (a) The income of the parties, from all sources, including, but not limited

to, income derived from property divided, disbursed, or distributed under section

3105.171 of the Revised Code;…

 {¶26} As noted by the court in Graves v. Graves, 4th Dist. Vinton No. 14CA694,

2014-Ohio-5812 at paragraph 42:

 R.C. 3105.18(C)(1)(a) clearly and unambiguously

 states that a trial court must consider "the income of the

 parties, from all sources," when determining whether spousal

 support is appropriate and reasonable. Thus, when trial

 courts determine whether to award spousal support, courts

 may consider a spouse's veteran's administration disability

 benefits, Social Security disability benefits, and Social

 Security retirement benefits, even if that income is a

 spouse's only source of income. Dilley v. Dilley, 11th Dist.

 Geauga No.2010–G–2957, 2011–Ohio–2093, ¶ 62 (disability

 benefits); Simpson v. Simpson, 12th Dist. Clermont No.

 CA2006–04–028, 2007–Ohio–224, ¶ 24 (Social Security

 retirement benefits); DiNunzio v. DiNunzio, 11th Dist. Lake

 No.2005–L–124, 2006–Ohio–3888, ¶ 59 (Social Security
 Coshocton County, Case No. 2015CA0002 11

 disability benefits); Crites v. Crites, 6th Dist. Wood No. WD–

 04–034, 2004–Ohio–6162, ¶ 22 (veteran's disability

 benefits); Cardone v. Cardone, 9th Dist. Summit No. 18349,

 1998 WL 224934 (May 6, 1998) (veteran's disability

 benefits).

 {¶27} We note that appellant cites to the United States Supreme Court

decision in Mansell v. Mansell, 490 U.S. 581, 594–595, 109 S.Ct. 2023, 104 L.Ed.2d

675 (1989), in which the court held that state courts may not "treat as property divisible

upon divorce military retirement pay that has been waived to receive veterans' disability

benefits." However, at issue in this case is whether or not such benefits can be

considered when calculating spousal support- not whether they are divisible as

property. Appellant also cites to Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624,

791 N.E.2d 434, in arguing that the trial court could not divide or tax his social security

benefits. However, "[a] court should consider social security benefits when determining

whether spousal support is correct." Minear v. Palkovic, 7th Dist. Mahoning No. 09–MA–61,

2009–Ohio–6752, ¶ 17, citing Beyer v. Beyer, 64 Ohio App.2d 280, 284, 413 N.E.2d 844 (8th

Dist.1979). Thus, the trial court did not err in considering appellant's social security

benefits.

 {¶28} Appellant finally argues that the trial court erred in taking account his

pension from Stone Container in determining spousal support. Appellant notes that the

Separation Agreement states, in relevant part, as follows under "C. Intangible Personal

Property":

 2. Wife shall retain free and clear of any claim of

 Husband the sum of $60,870.00 of Husband's Central
 Coshocton County, Case No. 2015CA0002 12

 Pension Fund of the International Union of Operating

 Engineers and Participating Employers. Each party

 represents and warrants that he or she has not made any

 withdrawal, transfer, or taken other action to reduce the

 balance of said account since the filing of the complaint for

 divorce. Wife shall pay all taxes, penalties and interest

 assessed as a result of receiving said pension. It is the

 understanding of the parties that an order to allocate these

 benefits may not be honored unless it is a Qualified

 Domestic Relations Order (QDRO) as defined under Section

 414 (p) of the "Internal Revenue Code of 1986", 100 Stat.

 2085, 26 USC1, as amended. Wife or her attorney shall be

 responsible for drafting and filing of an appropriate QDRO or

 other instrument. Both parties will fully cooperate in the

 drafting and signing of an appropriate QDRO or other

 instrument compatible with the division of said account as

 set forth herein. Husband shall retain the remainder of said

 account free and clear of any claim of Wife.

 {¶29} However, C above concerns the division of personal property-not the

consideration of the same in determining spousal support. Because appellant's pension

is "income", we find that the trial court did not err in considering the same in its spousal

support determination.

 {¶30} Appellant's second assignment of error is, therefore, overruled.
 Coshocton County, Case No. 2015CA0002 13

 {¶31} Accordingly, the judgment of the Coshocton County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.