The longer the term of permanent spousal support ordered or agreed to, the greater the likelihood that circumstances of the parties will change. Recognizing the possibility of changed circumstances, the Ohio spousal support statute was enacted to provide for modification of the award, if the court retained jurisdiction to do so. Both the term and the amount of the award may be modified if there was any increase or involuntary decrease in a party’s income or living expenses including medical expenses.
Case law from various Ohio courts was inconsistent as to whether the changes had to be substantial or unforeseen at the time of the original order or last modification. The Ohio Supreme Court has since held that any change incircumstance relied upon to request a modification of spousal support had to be both substantial and unforeseen. That ruling, however, raised more questions than it resolved as to what changes were to be considered foreseen or contemplated.
Ohio courts still disagreed as to how to interpret and apply the foreseeability test. Retirement, for example, is always foreseeable at some point. Can retirement be considered as a substantial change of circumstances to justify a modification of spousal support? In a Cuyahoga County, Ohio case known as Malkar v Malkar, both the trial court and the reviewing court held that husband’s voluntary retirement and election to collect social security benefits was a change of circumstances sufficient to justify termination of his spousal support obligation. Although retirement was clearly foreseeable at the time of the original order, husband was granted relief.
In an attempt to eliminate the foreseeable issue in modification cases, the Ohio Legislature, at the urging of the Ohio State Bar Association, amended the spousal support statute. While a change in circumstances must still be substantial, it could have been foreseen or contemplated. The test to be applied is whether that foreseen change in circumstances was taken into account by the parties or the court when the prior order was made. If the anticipated change was not considered by the court or the parties in arriving at the support order, it may be the basis of a future modification. The change in circumstances relied upon must also render the previous award no longer reasonable and appropriate.
While it is hoped that the latest change in the spousal support statute will bring uniformity and consistency to courts’ rulings, it remains to be seen.