Boggs v. BoggsBoggs v. Boggs
Justin R. Blume, The Blume Law Firm, LLC, Wheelersburg, Ohio, for Appellant.
Brigham M. Anderson, Anderson & Anderson Co. L.P.A., Ironton, Ohio, for Appellee.
Hoover, P.J.
{¶ 1} Christi Boggs (appellant) appeals the judgment of the Lawrence County Common Pleas Court that granted a divorce and ordered Randall Boggs (appellee) to pay appellant $600 per month spousal support for six years to begin after the sale of the marital residence. Appellant claims that the amount and duration of the spousal support order is not appropriate and reasonable. Because we find that the trial court did not abuse its discretion in regards to the spousal support award, we overrule appellant’s assignment of error and affirm the judgment of the trial court.
I. Facts
{¶ 2} In April 2013, appellee filed his complaint for divorce. Appellant filed an answer and counterclaim in May 2013. Appellant filed various motions, including a motion for
{¶ 3} The parties and appellant’s father, Gerald Warwick, were the witnesses that testified at the final hearing. The testimony revealed that the parties married on May 10, 1986. At the time of the divorce hearing, the parties were married for approximately 27 years. Appellant was 47 years of age; and appellee was 50 years of age. The parties had reared two children together, Autumn and Hunter, both of whom were emancipated. At the time of the hearing, Autumn was 24 years of age while Hunter was 22 years of age. Both parties paid various expenses for their children even though they are emancipated.
{¶ 4} The parties separated in April 2013 and agreed to a de facto date of April 1, 2013 as the date of termination of the marriage. Appellee had moved out of the marital home and was staying with a friend. The parties stipulated to incompatibility as the grounds for divorce.
{¶ 5} Although appellee moved out of the marital home, he voluntarily continued to pay the debt on the marital residence. Appellee paid the mortgage payment of $1,268 per month while appellant continued to live in the marital residence. Appellee also voluntarily continued to pay the utility bills—electric, propane, water, sewer, phone, trash, internet, etc.—at the marital residence even though he was not living there. The utility bills totaled approximately $700 per month. Appellee also paid the cell phone bill for the entire family of $250 per month. Appellee
{¶ 6} Appellant testified that she did pay for her own groceries, toiletries, over-the-counter medications, and other miscellaneous expenses (gifts) that totaled approximately $800 to $1,200 per month. Appellant claimed that she incurred approximately $200 per month for eating out expenses. As for car expenses, appellant has a 2008 Hyundai Sonata that is free from any lien; but she claimed car maintenance expenses of $50 to $100 per month. She further testified that she incurred $50 per week expenses for gasoline. Personal expenses of $50 per month for clothing and $40 per month for haircuts were also claimed by appellant.
{¶ 7} Expenses that appellant expected to incur once the divorce would be granted included the following: 1) cell phone bill of at least $230 to $300 per month; 2) automobile insurance of approximately $100 to $125 per month; 3) health insurance of $216.15 per month; 4) increased healthcare costs; 5) mortgage payment of $1,000 to $1,200 per month; 6) $200 for electric or $80 for gas; 7) $150 for water, sewage, and garbage combined; and 8) $80 for cable or satellite. Appellant further testified that she owed $200 for a medical bill and still had the obligation to pay her attorney’s fees. Appellant testified that a total estimate of her anticipated monthly expenses after the divorce would be $3,000 to $3,500.
{¶ 8} The parties memorialized in their separation agreement that they would sell the marital residence and divide the proceeds. The parties owed approximately $100,000 on the marital residence. They had agreed to list the home for $179,000 and to accept an offer over
{¶ 9} As for appellant’s employment, she testified that she worked for the Ironton Lawrence County Community Action Organization (CAO) doing medical billing. Appellant’s current bring home pay at the time of the final hearing was $1,331 per month. Appellant’s wages for 2013 totaled $27,642. Appellant explained that she worked considerable overtime in 2013 and that normally she would only earn $20,000 per year or less. In 2012, appellant earned $32,940. Appellant also worked overtime in 2012. As for appellant’s work history, she testified that she worked on and off at several different jobs throughout the twenty some years of marriage.
{¶ 10} Additional monies that appellant received included a tax refund from her 2013 tax return. Appellant had filed an individual tax return unbeknownst to appellee and claimed both children as dependents in order to receive a tax refund of $4,751. Appellant did not share any of the refund with appellee. Also, when the parties separated, appellant withdrew $4,772 from the parties’ joint bank account. Appellant claimed that she paid her lawyer and paid off her car with the monies. Appellant did not share any of the monies from the joint bank account with appellee. Because appellant had already filed her 2013 return claiming the two children as dependents, appellee had to file an individual return; and he incurred a $1,220 tax liability.
{¶ 11} Appellant had also been on a joint account with her father, Gerald Warwick, which at one time had at least $198,562 in the account. Appellant claimed that the account was in her name only for estate planning purposes. Coincidentally, the monies were withdrawn after appellant was deposed by appellee’s lawyer. Appellee did not make a claim to these funds. Appellee acknowledged that the funds were not marital.
{¶ 13} Appellant claimed that appellee had other employment as well as worked overtime. Appellee contended that since he took his new position as a commercial CMV trooper, he had not had to testify in court. Appellee also testified that although he used to teach in the driving program at the Patrol Academy, he did not teach there anymore. Appellee did state that he taught pursuit driving, emergency, non-emergency driving and how to detect alcohol and drug impaired drivers at Ohio University Southern, Ohio University Chillicothe, and Collins. Appellee admitted to earning some monies at Swap Days through the Scioto Poultry Association, working an Ohio State Football game, and the Ohio State Fair. With respect to appellee’s wages, his 2013 tax return encompassed all of the earnings from the sources listed above and reflected that he earned $72,198. Appellee opined that this figure was more than normal because of the overtime he received from working the Ohio State Fair.
{¶ 14} Appellant claimed that she contributed to appellee’s advancement in his career by typing his notes and doing all of his laundry every weekend while he was in the academy.
{¶ 15} Appellant testified that she had no retirement funds through her employment with CAO. However, by agreement of the parties, appellant would receive half of appellee’s retirement benefits of $3,000 when appellee would be eligible to draw the monies within at least
{¶ 16} The parties also testified to their respective health conditions. Appellant claimed that she has a herniated disc in her back. She testified that when her back flares up she cannot work. Appellant claimed that she would have to go to the doctor and get injections when it flared up. She claimed that she took anti-inflammatory medication on a regular basis. She further asserted that she has ulna neuropathy in her right arm. Appellant explained that if she had an issue with her arm again, she would not be able to work because she would not be able to type. Appellant also stated that she had been treated for anxiety, depression, headaches, and migraines. Despite these ailments, appellant testified that her health conditions do not impact her work to a severe enough extent to prevent her from working. She testified that she did not have any debilitating health problems and that she was able to work daily.
{¶ 17} With respect to the education level of the parties, both appellant and appellee have high school diplomas but no college degrees. The parties married a year after they graduated from high school. During that year, appellant took a typing class at Shawnee [State University]. Appellee attended the Ohio State Highway Patrol Academy approximately one year after the date of marriage. Appellee‘s start date at the Ohio State Highway Patrol was April 1, 1987. Four years elapsed after the parties graduated from high school before they had a child. Although appellant did not have a child for those four years, appellant adduced that she was unable to go to college because she was the caretaker of the children and that caused her to make less money.
II. Assignment of Error
{¶ 19} On appeal, appellant asserts one assignment of error for review:
Assignment of Error:
THE TRIAL COURT ERRED IN AWARDING APPELLANT ONLY $600.00 PER MONTH SPOUSAL SUPPORT FOR SIX (6) YEARS, TO BEGIN AFTER THE SALE OF THE MARITAL RESIDENCE.
{¶ 20} In her sole assignment of error, appellant contends that the amount and duration of the spousal support order is not appropriate and reasonable. Appellant argues that appellee’s attorney relied upon parlor tricks in making his arguments. The appellant makes harsh claims that the trial court was unfamiliar with the statutory and case law regarding spousal support and disregarded the evidence submitted. Appellant further asserts that the trial court offered no authority for its decision, made factual findings inconsistent with the evidence, failed to properly apply those factual findings it did make, and failed to articulate the basis for the amount it awarded. Appellant contends that the trial court failed to fully and fairly consider the evidence submitted. Appellant requests this Court to reverse and remand the case because the trial court failed in all respects.
III. Law and Analysis
{¶ 22} Once a party requests it, the court may make an appropriate and reasonable spousal support award.
(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 ;(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional conditions of the parties;
(d) The retirement benefits of the parties; (e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;
(g) The standard of living of the parties established during the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party‘s contribution to the acquisition of a professional degree of the other party;
(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of spousal support;
(m) The lost income production capacity of either party that resulted from that party‘s marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant and equitable.
{¶ 23} When making a spousal support award, a trial court must consider all statutory factors, and not base its determination upon any one of those factors taken in isolation. Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988), paragraph one of the syllabus. While the trial court is given broad discretion regarding the determination of the appropriateness and reasonableness of an award of spousal support, it must consider the statutory factors enumerated above and must indicate the basis for a spousal support award in sufficient detail to enable a reviewing court to determine that the award complies with the law. Id. at paragraph two of the syllabus. Kaechele does not require the trial court to articulate the rationale or basis of its spousal support decision in the decree as long as the record contains adequate support and detail to permit an appellate court to establish whether the award is fair and in accordance with the law. Carman v. Carman, 109 Ohio App.3d 698, 704, 672 N.E.2d 1093 (12th Dist.1996). Kaechele and
{¶ 24} In the absence of a request for findings of fact and conclusions of law, Kaechele does not require the trial court to list and comment on each factor. Rinehart v. Rinehart, 4th Dist. Gallia No. 98CA9, 1999 WL 769574 (Sept. 15, 1999), citing Alder v. Alder, 105 Ohio App.3d 524, 526, 664 N.E.2d 609 (12th Dist.1995), overruled on other grounds by Carnahan v. Carnahan, 118 Ohio App.3d 393, 400, 692 N.E.2d 1086 (12th Dist.1997). This Court stated in Mann v. Mann, 4th Dist. Athens No. 09CA38, 2011-Ohio-1646, ¶ 11:
* * *
Civ.R. 52 states: When questions of fact are tried by a court without a jury, judgment may be general for the prevailing party unless one of the parties inwriting requests otherwise * * * in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law. The failure to request findings of fact and conclusions of law ordinarily results in a waiver of the right to challenge the trial court‘s lack of an explicit finding concerning an issue. See Pawlus v. Bartrug (1996), 109 Ohio App.3d 796, 801, 673 N.E.2d 188; Wangugi v. Wangugi (Apr. 12, 2000), Ross App. No. 2531; Ruby v. Ruby (Aug. 11, 1999), Coshocton App. No. 99CA4. When a party fails to request findings of fact and conclusions of law, we must presume the regularity of the trial court proceedings. See, e.g., Bunten v. Bunten (1998), 126 Ohio App.3d 443, 447, 710 N.E.2d 757; see, also, Cherry v. Cherry (1981), 66 Ohio St.2d 348, 356, 421 N.E.2d 1293; Security Nat. Bank and Trust Co. v. Springfield City Sch. Dist. Bd. of Educ. (Sept. 17, 1999), Clark App. No. 98–CA–104; Donese v. Donese (April 10, 1998), Greene App. No. 97–CA–70. In the absence of findings of fact and conclusions of law, we must presume the trial court applied the law correctly and must affirm if there is some evidence in the record to support its judgment. See, e.g., Bugg v. Fancher, Highland App. No. 06CA12, 2007–Ohio–2019, at ¶ 10, citing Allstate Financial Corp. v. Westfield Serv. Mgt. Co. (1989), 62 Ohio App.3d 657, 577 N.E.2d 383; see, also, Yocum v. Means, Darke App. No. 1576, 2002–Ohio–3803, at ¶ 7 (The lack of findings obviously circumscribes our review.). As the court explained in Pettet v. Pettet (1988), 55 Ohio App.3d 128, 130, 562 N.E.2d 929: [W]hen separate facts are not requested by counsel and/or supplied by the court the challenger is not entitled to be elevated to a position superior to that he would
have enjoyed had he made his request. Thus, if from an examination of the record as a whole in the trial court there is some evidence from which the court could have reached the ultimate conclusions of fact which are consistent with [its] judgment the appellate court is bound to affirm on the weight and sufficiency of the evidence. The message is clear: If a party wishes to challenge the * * * judgment as being against the manifest weight of the evidence he had best secure separate findings of fact and conclusions of law. Otherwise his already uphill burden of demonstrating error becomes an almost insurmountable mountain.
See, also, Bugg; McClead v. McClead, Washington App. No. 06CA67, 2007–Ohio–4624.
{¶ 25} In the case sub judice, the appellant failed to request findings of fact and conclusions of law. Since appellant did not request findings of fact and conclusions of law, we will presume the regularity of the trial court proceedings, in the absence of evidence to the contrary.
{¶ 26} Although appellant argues that the trial court was unfamiliar with the law regarding spousal support and disregarded the evidence submitted, it is clear that the trial court was familiar with the standards set forth in
(a) The parties offered various bank account statements, tax refunds, and health insurance cost. The parties will also be dividing certain marital assets and
allocating division of debt. The party’s incomes vary by the amount of overtime that each party elects to work; (b) The Plaintiff’s earning abilities outweigh that of the Defendant’s. The Plaintiff earns approximately $72,100 annually while the Defendant earns $27,642 annually. The parties are earning at or near their earning abilities. Their earning abilities are not likely to change absent a deterioration in their physical or mental conditions;
(c) There does not appear to be any physical, mental, or emotional issues which prohibit either party from maintaining their employments;
(d) The Defendant shall be receiving one half of the Plaintiff’s retirement benefits that have accrued from May 10, 1986 through April 1, 2013. The Defendant does not have retirement benefits available to her;
(e) The parties were married May 10th, 1986 and had agreed to a defacto date of April 1, 2013 as termination of the marriage. Therefore, the parties were married for approximately 27 years. The Court finds this to be a long term marriage;
(f) Not applicable;
(g) It appears the parties maintained an upper middle class standard of living;
(h) Both parties obtained a high school degree. The Plaintiff obtained further training through Ohio State Highway Patrol;
(i) The parties do not have significant debt although the Plaintiff will be assuming the bulk of the debt with the Defendant being responsible for her medical bills and legal expenses. The parties will be dividing equally the
proceeds of the sale of their residence. There is no contribution from either party towards the others education, training, or earning ability of the other party other than normal marital duties expected of each party to the other3; (k) Non-applicable;
(l) Plaintiff will be entitled to deduct any and all spousal support paid to the Defendant, the Defendant will be required to claim such income for income tax purposes;
(m) The Defendant had some loss income production resulted from her marital responsibilities. The Defendant was a homemaker with sporadic work history until later in the marriage. However, it does not appear that her loss income production was significantly impaired by her earlier marital role.
(n) The Defendant [sic]4 has been making the house payments and utility payments for the last year and will continue to make such until the house is sold.
{¶ 27} Here, we find that the trial court did not abuse its discretion in making the spousal support award. The trial court’s attitude was not unreasonable, arbitrary, nor unconscionable. The trial court’s findings are not so palpably and grossly violative of fact or logic. The trial court’s findings do not evidence the perversity of will, the defiance of judgment, nor the exercise of passion or bias. See White, supra, at ¶ 25, citing Nakoff, 75 Ohio St.3d at 256, 662 N.E.2d 1.
{¶ 28} We will not disturb a trial court’s factual finding unless it is against the manifest weight of the evidence. See, e.g., C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. A finding is not against the manifest weight of the evidence as long as the record contains some competent, credible evidence to support it. Id. This standard of review is highly deferential and even some evidence is sufficient to sustain the finding and prevent a reversal. Barkley v. Barkley, 119 Ohio App.3d 155, 159, 694 N.E.2d 989 (4th Dist.1997). A reviewing court should be guided by a presumption that the findings of a trial court are correct, since the trial judge is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use those observations in weighing the credibility of the testimony. Id., citing In re Jane Doe I, supra; see also, Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). After reviewing the transcripts of the final hearing, the findings made by the trial court are consistent with the evidence.
{¶ 29} When considering
{¶ 30} The appellee is also maintaining responsibility for paying the two credit cards that totaled approximately $10,000. The only debts that appellant is responsible to pay are her own medical bill of $200 and her own attorney’s fees. In addition, appellant
{¶ 31} Also, appellant is employed and worked throughout most of the marriage. Appellant admitted that her health issues do not impact her work to a severe enough extent to prevent her from working. She testified that she did not have any debilitating health problems and that she was able to work daily. Appellee may be earning substantially more than appellant currently; however, once appellee reaches the age of 56, he will have to leave his employment. Appellee’s continued employment is not guaranteed. There is no requirement that each party must experience the same standard of living they experienced during the marriage. More realistically, each party must bear some reduction in economic well-being. Warner v. Warner, 4th Dist. Scioto No. 12CA3511, 2013-Ohio-478, ¶ 16, (Harsha, J., concurring). In this case, both parties may suffer a reduction in economic well-being; however, we cannot find that the trial court abused its discretion in tailoring the spousal support award.
IV. Conclusion
{¶ 32} Considering the totality of the circumstances, we do not find that the trial court abused its discretion when determining the amount and duration of appellant’s spousal support. Accordingly, we overrule appellant’s assignment of error. The judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
By:
Marie Hoover, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.