GEARY BURKE v. CINDY BURKE
Appellate Case No. 2011-CA-2
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
July 29, 2011
2011-Ohio-3723
Trial Court Case No. 10-DR-11 (Civil Appeal from Common Pleas Court, Domestic Relations)
Rendered on the 29th day of July, 2011.
ANDREA R. YAGODA, Atty. Reg. #0024097, 2000 Henderson Road, Suite 250, Columbus, Ohio 43220 Attorneys for Plaintiff-Appellant
JOSEPH BADER, Atty. Reg. #0083472, Goslee & Goslee, 114 South Main Street, Post Office Box 416, Bellefontaine, Ohio 43311 Attorney for Defendant-Appellant
HALL, J.
{1} Appellant, Geary Burke, appeals from a judgment and journal entry granting his divorce rendered by the Champaign County Court of Common Pleas, Domestic Relations Division. The Appellant contends that the trial court abused its discretion with regard to spousal support, the division of liabilities and property, and the reservation of jurisdiction to
{2} Cindy and Geary Burke married in Las Vegas, Nevada on November 28, 2005. Due to a shoulder injury, Cindy was unemployed and had no income prior to the marriage, but she had applied for Social Security Disability. Geary received $6,819.00 gross per month from Veteran‘s Disability Compensation due to an automobile accident injury he suffered in 1974 while in the navy. Geary worked for a Veteran‘s Affairs Hospital as a counselor for veterans with disabilities. But, his prior injuries made this work increasingly difficult. Geary eventually applied for permanent disability which was approved. At the time of marriage, the State of Ohio had placed Geary on permanent disability, where he began to receive $2,528.41 net per month ($2,940.58 gross) from the Ohio Public Employee Retirement System (OPERS), in addition to the $6,819.00 he received from his Veteran‘s Disability Compensation. After deductions, this brought Geary‘s net income to $9,347.41 per month at the time he and Cindy married, although Geary was already paying $1,836.00 in spousal support to his previous wife of 27 years.
{3} Following marriage, Geary paid all expenses for both himself and Cindy. The couple lived in Cindy‘s home on West Poplar Street, in St. Paris, OH., until 2006. Then, the couple decided to purchase a new home on Country Road 5, in Zanesville, OH. When purchasing the new home, Geary is the only person who signed the mortgage note, although Cindy was listed on the deed. After purchasing this home, Geary continued to pay all expenses, including the mortgage notes and utilities for both the Poplar Street and Country Road 5 residences, as well as a new time-share he and Cindy purchased. In October, 2008, Cindy received her Social Security Disability award which included a lump sum of
{4} The parties separated on November 11, 2009, and Geary filed for a divorce on January 26, 2010 on the grounds of incompatibility. Cindy Burke filed a motion for Temporary Spousal Support on April 1, 2010, and the trial court issued a temporary order requiring Geary to pay Cindy temporary spousal support of $2,200.00 per month plus processing charges. Geary Burke failed to do so, and on May 17, 2010, Cindy filed a motion for contempt. Shortly thereafter, Geary Burke was found in contempt and sentenced to seven days in jail, although he was permitted to purge the contempt through paying the temporary spousal support. Following the divorce trial, the trail court issued the final judgment mandating the following: Geary was ordered to pay Cindy $1,836.00 per month in spousal support for one year, as well as $224.40 per month on the temporary spousal support arrearage; Geary was ordered to pay $7,500.00 on Cindy‘s Bank of America credit card within ninety days; the parties were to retain their separate residences; the time share was to be sold and each party would split the proceeds; and Cindy was to retain possession of a 42 inch television purchased during the marriage.
{5} In FOUR Assignments of Error, Geary Burke asserts:
{6} (I) “THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DIVISION OF THE PERSONAL PROPERTY AND DEBTS OF THE PARTIES AND IN CONSIDERING EXHIBIT A TO DO SO.”
{8} (III) “THE TRIAL COURT‘S AWARD OF SPOUSAL SUPPORT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AN ABUSE OF DISCRETION AND CONTRARY TO LAW.”
{9} (IV) “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED CONTRARY TO LAW IN RESERVING JURISDICTION OVER THE SPOUSAL SUPPORT ISSUE.”
I
{¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DIVISION OF THE PERSONAL PROPERTY AND DEBTS OF THE PARTIES AND IN CONSIDERING EXHIBIT A TO DO SO.”
{11} Initially, in his first assignment of error, Geary asserts that the trial court abused its discretion and acted contrary to law in using the final hearing date to determine liabilities and assets acquired “during the marriage,” as opposed to using the “date of separation.” “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable, or an “action that no conscientious judge could honestly have taken.” State v. Brady (2008), 119 Ohio St.3d 375, 2008-Ohio-4493 at ¶23; Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. “The mere fact that a reviewing court would have reached a different result is not enough, without more, to find error.” State v. Beechler, Clark App. No. 09-CA-54, 2010-Ohio-1900 at ¶67.
{13} The trial court made no determination that using the “final hearing date” would be inequitable. Also, during trial, neither party requested that the trial court utilize the “date of separation” for the distribution and valuation of liabilities. Accordingly, the trial court reasonably used the “date of marriage” and the “final hearing date” to determine what property and debt were acquired “during the marriage.”
{14} Geary Burke also contends the trial court abused its discretion in failing to place values on liabilities. Again, we disagree. Although both parties had extensive credit card debt prior to the marriage, each maintained his or her own debt throughout the marriage. In determining that each party had the same credit cards they each entered the marriage with, and any credit cards opened during the marriage were in one party‘s name, the court sent each
{15} Next, appellant argues the trial court abused its discretion in ordering him to pay $7,500.00 on Cindy‘s Bank of America credit card. We find that the trial court did not abuse its discretion with this order. According to both parties’ testimony, at least some of the balance on the Bank of America credit card was marital debt acquired by both parties throughout the marriage. Moreover, while testifying on two separate occasions, Geary agreed to “help Ms. Burke out” by paying half of the remaining balance on the card. TT. P. 41, ll. 17-18. At trial, the balance on the card was approximately $17,000.00, although Geary testified to paying it down to $15,000.00 at separation. We find that ordering Geary Burke to pay $7,500.00 toward the balance of the Bank of America credit card, especially when he effectively acknowledged he would pay one half of the debt, was not unreasonable.
{16} Furthermore, appellant asserts the trial court abused its discretion in ordering
{17} Lastly, in this first assignment of error, Geary asserts that the valuation of his home on Country Road 5, which he presented from the witness stand, is not conclusive as to the home‘s value. A trial court may only decide a case with the evidence the parties present to it. Appellant testified he thought the house was worth $250,000. TT p. 86, ll. 1-2. Although he seems to contradict that value in later testimony, TT p. 98-100, the “contradiction” was based on what a realtor told him, not his own opinion. Id. Accordingly, the trial court reasonably accepted the values the parties gave to their properties.
{18} Appellant‘s first assignment of error is overruled.
II
{19} “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED CONTRARY TO LAW IN RESERVING JURISDICTION OVER THE REAL ESTATE
{20} In his second assignment of error, Geary Burke asserts that because the record does not contain any agreement by the parties that the court retain jurisdiction over the division of property, the trial court abused its discretion and acted contrary to law in reserving jurisdiction over the real estate. We find that the trial court‘s decision to reserve jurisdiction is contrary to statutory authority for division of property. Undoubtedly, a trial court can enforce its division of property order, and perhaps this is what the court intended when it stated it reserved jurisdiction over the real estate issue. In its final decree, the trial court awarded Geary the real estate on Country Road 5 and awarded Cindy the real estate on West Poplar Street. This order was consistent with the mortgage notes for each property. The home on West Poplar Street belonged to Cindy prior to and throughout the marriage. She willingly retained possession of this property and agreed to take full financial responsibility for it. Although the real estate on Country Road 5 was acquired during the marriage and had both Burkes’ names on the deed, the mortgage note for that property was in Geary Burke‘s name alone. Accordingly, during pendency of the divorce, he willingly retained possession of this property and at the trial he agreed to take full financial responsibility for it. This property division appeared to be consistent with the parties’ requests.
{21} However, with respect to each property, the journal entry states: “The court will retain jurisdiction over the real estate issue.” The court could not “retain jurisdiction” over the real estate if to retain jurisdiction means reserving the ability to modify the property division. According to the Revised Code, “a division or disbursement of property or a distributive award made under this section is not subject to future modification by the court.”
{22} Appellant‘s second assignment of error is sustained. Absent relief from the judgment in accordance with
III
{23} “THE TRIAL COURT‘S AWARD OF SPOUSAL SUPPORT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AN ABUSE OF DISCRETION AND CONTRARY TO LAW.”
{24} In his third assignment of error, Geary Burke contends the trial court abused its discretion with its spousal support award. “A trial court has broad discretion in establishing and modifying a spousal support award.” Dingess v. Smith, Washington App. No. 09-CA-18, 2010-Ohio-343, citing Cassidy v. Cassidy, Pike App. No. 03CA721, 2005-Ohio-3199, at ¶ 27. “Thus, we will not reverse a spousal support award absent an abuse of discretion.” Id. In
{25} The parties were married for four and a half years, and Cindy earns substantially less than Geary. However, Geary claims that the court erred in awarding spousal support to Cindy and that, even if spousal support was warranted, the amount of the spousal support award was unjustified. He asserts that because this is a marriage of short term, she accumulated more debt alone during the marriage and left the marriage better off than she entered it, he should not have to pay her spousal support. Furthermore, Geary contends the court abused its discretion because it failed to explain why it arrived at the amount and duration of spousal support it ordered him to pay, despite the evidence presented demonstrating that, financially, it was not feasible for him to pay that amount.
{26} The trial court awarded Cindy spousal support in the amount of $1,836.00 per month for one year, plus $224.40 per month on the temporary spousal support arrearage. It arrived at this amount by imputing income to Geary in the amount of $112,000 to $115,000 per year, which was the money he received through his Veteran‘s Disability Benefits and
{27} Geary asserts that the spousal support award was against the manifest weight of the evidence. If the trial court had properly weighed the evidence presented, he argues, the court would not have ordered him to pay support or he would have been ordered to pay less. During trial, Geary testified that before paying taxes and $1,836.00 per month of spousal support to his previous wife, his monthly expenses are $7,133.68. After paying all of his expenses, he has $2,300.00 of disposable income for the month. (TT p. 98 ll 14-18). Thus, granting appellee a monthly spousal support award of $1,836.00 plus arrearage charges is not economically feasible according to him.
{29} Accordingly, the third assignment of error is overruled.
IV
{30} “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED CONTRARY TO LAW IN RESERVING JURISDICTION OVER THE SPOUSAL SUPPORT ISSUE.”
{31} Appellant‘s fourth assignment of error is the trial court abused its discretion in retaining jurisdiction over the temporary spousal support order. The trial court awarded Cindy Burke temporary spousal support for one year. Geary Burke asserts because this was a marriage of short duration (less than five years) and it is unlikely either party‘s earning potential will significantly change within the following year, retaining jurisdiction over this issue was an abuse of discretion. We find that although the facts are unclear on whether retaining jurisdiction on the spousal support order was necessary, doing so does not constitute an abuse of discretion.
{32} “The decision [of] whether to retain jurisdiction to modify a spousal support award is within the trial court‘s discretion.” Seitz v. Seitz, Champaign App. No. 2010 CA 9, 2011-Ohio-1826, citing Board v. Board (March 23, 2001), Clark App. No.2000 CA 42. “Although Ohio courts generally agree that a trial court abuses its discretion in failing to reserve jurisdiction when imposing an indefinite award of spousal support, the same does not
{33} Although the determination is a fact-sensitive one, we have held that a trial court abused its discretion in failing to retain jurisdiction over a spousal support award of as little as three years, finding that an award of such a duration was “long enough to justify reservation of jurisdiction” because there was a substantial likelihood that the economic conditions of the parties would change. Seitz, supra, citing Jackson v. Jackson (Nov. 8, 1996), Montgomery App. No. 15795. We have also held that it is an abuse of discretion not to reserve jurisdiction to modify an award of spousal support that is to continue for a significant [or indefinite] period of time. Dyer v. Dyer (Jan. 22, 1992), Clark App. No. 2801; Canales v. Canales (March 17, 1989), Greene App. No. 88CA52; see also, Kuper v. Halback, Franklin App. No. 09AP-899, 2010-Ohio-3020, ¶ 62. Furthermore, other courts have found that a trial court can retain jurisdiction to set spousal support, even if no spousal support is ordered at the time of the final decree, provided that retention of jurisdiction is supported by the facts of the case. Vona v. Vona (Feb. 5, 2001), Stark App. No. 200 CA 40.
{34} In this case, Cindy Burke was awarded a significant award for a short period of time. Given the evidence of each party‘s income and expenses, we find the trial court acted within its discretion in retaining jurisdiction to modify the amount of the award if the financial circumstances of either party change within the following year.
{36} We have found that the trial court‘s determination to “retain jurisdiction over the real estate issue” is error. In accordance with Appellate Rule 12(A)(1)(a), we modify the judgment by deleting the retention of jurisdiction over the division of real estate. As modified, the trial court‘s judgment is Affirmed.
DONOVAN and FROELICH, JJ., concur.
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Joseph R. Bader
Andrea R. Yagoda
Hon. Brett A. Gilbert