Furman v. FurmanFurman v. Furman
Rendered on December 20, 2011
Eugene R. Butler Co., LPA, and Eugene R. Butler, for appellee.
Golden & Meizlish Co., LPA, and Keith E. Golden; Vincent A. Dugan, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations
CONNOR, J.
{¶1} Plaintiff-appellee/cross-appellant, Sandra M. Furman, and defendant-appellant/cross-appellee, Franklin Furman, have both appealed from a decree of divorce entered by the Franklin County Court of Common Pleas, Division of Domestic Relations. The parties were married on November 1, 1986 and have one adult child. Sandra filed a complaint for divorce in 2008, to which Franklin responded with a counter-claim for
{¶2} Franklin has timely appealed and brings the following assignments of error:
- THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW IN AWARDING SPOUSAL SUPPORT FOR ELEVEN AND ONE-HALF YEARS WITHOUT STATING THE UNDERLYING BASIS FOR THE LENGTH OF SAID AWARD.
- THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW IN FAILING TO MAKE ITS SPOUSAL SUPPORT ORDER TAX DEDUCTIBLE TO APPELLANT AND TAXABLE INCOME TO APPELLEE AS WELL AS TERMINABLE UPON THE DEATH OF EITHER PARTY OR APPELLEE‘S REMARRIAGE OR COHABITATION.
- THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW BY FAILING TO RESERVE ITS JURISDICTION OVER A LENGTHY SPOUSAL SUPPORT ORDER.
{¶3} Sandra has timely cross-appealed and brings the following assignments of error:
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN FAILING TO RETURN TO PLAINTIFF HER PREMARITAL SEPARATE PROPERTY DOWN PAYMENT THE COURT DETERMINED HAD BEEN ESTABLISHED.
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN FAILING TO AWARD TO PLAINTIFF THE APPRECIATION ON HER PREMARITAL SEPARATE PROPERTY.
{¶4} Franklin‘s first assignment of error asserts that the trial court erred in awarding spousal support for a duration of eleven and one-half years. When reviewing a trial court‘s decision granting or denying an award of spousal support, we will reverse or alter the award only upon a finding that the trial court abused its discretion. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67; Hess v. Riedel-Hess, 153 Ohio App.3d 337, 2003-Ohio-3912, ¶29. An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
(C)(1) 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:
(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.
{¶5} The trial court‘s decision extensively addresses these factors in light of the evidence heard at trial. Upon appeal, Franklin largely does not contest the trial court‘s conclusions in instances where the facts were contested. Rather than challenging the amount of the award Franklin contests the duration, asserting that the trial court, pursuant to the statute, was required to present a separate analysis and rationale specifically supporting the eleven and one-half years duration of spousal support.
{¶7} At the time of trial, Franklin had income as a self-employed businessman buying and selling wholesale cellular equipment through his company, Link Processor. Franklin‘s own expert, Thomas P. Giusti, CPA, testified that the specific financials of this business were in many respects lacking and the expert could only testify based on certain underlying assumptions. The trial court‘s decision notes that this and other testimony demonstrates that Franklin runs many of his personal expenses through Link Processor, takes shareholder distributions or loans in addition to his nominal salary, and otherwise confuses the financial picture with uncertain accounting. Further testimony by Sandra‘s expert witness, Bradford Smith Ellridge, CPA, concluded that the net cash flow available to Franklin after taxes and expenses was $144,000 from Link Processor.
{¶9} With respect to their ages, physical, mental, and emotional conditions, the court found that both parties were free from health conditions that restricted their ability to work. While both were taking medication for various conditions, and Franklin in particular had undergone multiple surgeries from 1972 to 1975 for serious illnesses, both Franklin and Sandra testified that they were capable of continuing their current work regime for the foreseeable future and not restricted by health concerns.
{¶10} With respect to other financial circumstances, the court noted that testimony established a relatively modest standard of living by the parties during the marriage, with their lifestyle dictated by a compromise between Sandra‘s tendency to save for retirement and Franklin‘s profligate tendency to spend extensively on consumer items. Franklin in particular bought and sold a number of expensive men‘s watches and purchased other expensive men‘s clothing and accessories. During the latter years of the marriage, Franklin accumulated large amounts of consumer debt while Sandra built up substantial retirement savings, each primarily in his or her own name. The court noted that in these final years of the marriage, Franklin borrowed heavily against certain life insurance policies, including some not in his name.
{¶11} Based upon the above income figures, lifestyle habits, relative needs of the parties, and Franklin‘s past practice of providing a $350-per-week domestic allowance to Sandra, the trial court concluded that spousal support in the amount of $1,500 per month was warranted. Not directly disputing the amount of this figure, Franklin focuses in the
{¶12} Ohio law certainly permits permanent support only where circumstances warrant: “[w]here a payee spouse has the resources, ability and potential to be self-supporting, an award of sustenance alimony should provide for terminating the award within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties’ rights and responsibilities.” MacMurray v. Mayo, 10th Dist. No. 07AP-38, 2007-Ohio-6998, ¶8, citing Kunkle at paragraph one of the syllabus. Nonetheless, “a marriage of long duration ‘in and of itself would permit a trial court to award spousal support of indefinite duration without abusing its discretion or running afoul of the mandates of Kunkle.’ ” Vanke v. Vanke (1994), 93 Ohio App.3d 373, 377, quoting Corpac v. Corpac (Feb. 27, 1992), 10th Dist. No. 91AP-1036.
{¶13} Franklin presents no authority for the proposition that a terminable award of spousal support, even one of eleven and one-half years duration, is subject to the strict Kunkle analysis applied to permanent support merely because the duration of that finite term is asserted to be excessive. In the present case, therefore, we undertake a conventional abuse of discretion review of the trial court‘s application of the
{¶14} Franklin‘s second assignment of error asserts that the trial court erred in failing to explicitly state that spousal support would be tax deductible to Franklin and terminable upon death or remarriage.
{¶15} With respect to the termination upon death,
{¶17} Finally, Franklin argues that the trial court abused its discretion when it did not provide that the spousal support would terminate if Sandra remarried or cohabitated and conduct a separate analysis of the statutory factors governing support in this respect. The only authority provided by Franklin on appeal for the proposition that this aspect of the award requires an independent review of the statutory factors, is Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 96-97. While that case generally addresses the requirements that the trial court consider the statutory factors set forth in
{¶19} Although some Ohio courts have held that a trial court abuses its discretion in failing to reserve jurisdiction when imposing an indefinite award of spousal support, see, e.g., Nori v. Nori (1989), 58 Ohio App.3d 69, 72, those cases, if sound, would nonetheless not automatically apply when the court imposes a definite period. Kuper, at ¶62, citing Deacon, Johnson, and Nori. Rather, an appellate court must consider the totality of circumstances and the specific facts of each case in determining whether a trial court abused its discretion in declining to retain jurisdiction. Id. “A trial court abuses its discretion in failing to reserve spousal support jurisdiction where there is a substantial likelihood that the economic conditions of either or both parties may change significantly within the period of the award.” Id. at ¶63, citing Newman v. Newman, 5th Dist. No. 2003 CA 00105, 2004-Ohio-5363.
{¶20} The trial court‘s extensive analysis of the financial circumstances of the parties does address the future economic circumstances of the parties. With particular
{¶21} Sandra‘s first assignment of error on cross-appeal asserts that the trial court erred in declining to award her, as premarital separate property, a proportion of the equity in the marital residence directly traceable to a down payment on a prior marital home made with Sandra‘s separate funds.
{¶22} At the time of separation, the parties resided at 205 South Chesterfield in Bexley, Ohio. The stipulated value of this marital residence at the time of trial was $190,000. Subsequent evidence established that with a mortgage balance of $55,620, the net equity in the marital residence at the time of trial was $134,380, which the trial court awarded entirely to Franklin.
{¶23} Prior to purchase of the South Chesterfield home, the parties owned a home at 915 South Roosevelt Road, in Bexley, Ohio, purchased in October 1987 for $73,500. Sandra testified without contradiction that the $7,400 down payment on the South Roosevelt home came out of her premarital assets. (Tr. 242.) The couple sold the South Roosevelt home in 1993 for $91,900, replacing it in July 1993 with the South Chesterfield home, purchased for $105,900. Sandra variously testified that “all” of the net proceeds from the South Roosevelt sale were rolled into the South Chesterfield home, or that the parties put 20 percent down on the South Chesterfield home. (Tr. 245-47, 382.)
{¶25} Interestingly, Franklin also claims that he invested separate funds toward the purchase of the South Chesterfield residence, but the trial court found that his testimony in this respect was not credible. However, the trial court found that Sandra‘s attempt to ascertain the present value of her initial $7,400 separate interest in the first marital residence was handicapped by the absence of “clear tracing detail and credible testimony.” (Trial court decision, at 5.) The trial court also noted that neither party had presented a settlement agreement relating to the purchase of the South Chesterfield residence nor otherwise elaborated the financial circumstances surrounding the disposition of proceeds from the South Roosevelt home and the purchase of the South Chesterfield home.
{¶26} Sandra now argues that the trial court should have found, on the basis of unrebutted testimony regarding her $7,400 separate property down payment on the first marital residence and her unrebutted testimony that the couple rolled the entire proceeds into their second residence, that the initial down payment was both separate property and traceable through various sales and purchases.
{¶27} Pursuant to
{¶28} In the present case, we do not find sufficient evidence in the record to establish an abuse of discretion on the part of the trial court in concluding that the funds initially and undisputedly contributed to the purchase of the first marital residence by Sandra can be conclusively traced through the subsequent sale of that residence, purchase of a new residence, and acquisition of equity in that residence to her initial contribution. In particular, the absence of a settlement agreement or other documentary or detailed exposition of the circumstances regarding the purchase of the South Chesterfield home makes it difficult to accurately trace the funds. There is also little in the record to indicate to what extent appreciation in either house, and consequently the amount of equity derived from either, is attributable to the initial down payment, subsequent improvements, or scheduled pay-down of mortgage debt. While the trial court in the present case might well have reasonably found that the initial down payment was traceable, to do so would have required to some degree a leap of faith regarding the intervening financial circumstances affecting the value of the homes. In sum, we find that it was not an abuse of discretion on the part of the trial court to decline to make that leap. Sandra‘s first cross-assignment of error is overruled.
{¶30} In summary, Franklin‘s first, second, and third assignments of error on appeal are overruled. Sandra‘s first and second cross-assignments of error are also overruled. The judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed.
Judgment affirmed.
BRYANT, P.J., and FRENCH, J., concur.