SHARON GRAVES, Plаintiff-Appellee, vs. ROY L. GRAVES, Defendant-Appellant.
Case No. 14CA694
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY
DATE JOURNALIZED: 12-22-14
[Cite as Graves v. Graves, 2014-Ohio-5812.]
ABELE, P.J.
APPEARANCES:
COUNSEL FOR APPELLANT: Joshua D. Price, Price Law Office, P.O. Box 591, Pomeroy, Ohio 45769
APPELLEE PRO SE: Sharon Graves, 11614 State Route 139, Jackson, Ohio 45640
CIVIL CASE FROM COMMON PLEAS COURT
{¶ 2} Appellant raises two assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED SUBSTANTIAL ERROR AND ABUSED ITS DISCRETION IN ORDERING APPELLANT TO PAY ALL OF THE MARITAL DEBTS IN ADDITION TO ORDERING SPOUSAL SUPPORT.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW IN AWARDING AN AMOUNT OF SPOUSAL SUPPORT TO APPELLEE WHICH WAS UNREASONABLE, INAPPROPRIATE, AND UNSUPPORTED BY THE EVIDENCE PRESENTED AT TRIAL.”
{¶ 3} The parties married on December 12, 1994 and had no children born as issue of the marriage. On February 21, 2012, appellee filed a divorce complaint. Appellant subsequently counterclaimed for divorce.
{¶ 4} Before the final hearing, the parties stipulated to all issues, except whether appellee should receive spоusal support and how to allocate the marital debt. The parties agreed that neither party has significant assets and that each party shall retain the personal property in their individual control. They also agreed that appellant receives approximately $3,000 per month as a disability benefit and that both parties have medical conditions that prevent them from working.
{¶ 6} Appellee stated that she is sixty-two years old and presently lives in her son‘s garage. She testified that when the parties first separated, she lived in a small house, but had to move when she could no longer pay the utility bills. Appellee explained that during the marriage when she controlled the parties’ finances, she opened several credit card accounts, in her name only, to purchase clothing, Christmas gifts, birthday gifts, items “that we needed for the family,” and groceries.
{¶ 7} Appellant stated that he is seventy-four years old and lives with his son. Appellant testified that he pays his son $400 a month for a “roof over his head.” When questioned whether he has other monthly expensеs, appellant stated that he purchases food and clothing for himself, but he was unable to state how much he spends per month on food and clothing.
{¶ 8} On January 2, 2014, the trial court entered findings of fact and conclusions of law and incorporated the parties’ stipulations. The court found that the $5,050 outstanding credit card debt was accumulated during the marriage and constituted marital debt. The court explained: “The charges were for clothing, Christmas gifts, groceries, house, etc. The cards were opened in [appellee‘s] name only because [appellant] couldn‘t get credit. Until 2007/2008 [appellant] took care of the bills then turned it over to [appellee].”
{¶ 10} With respect to spousal support, the court stated:
“The consideration of spousal support as determined herein is made after an equitable division of the martial assets and obligations as required by
O.R.C. 3105.171(C)(3) . The determination with regard to spousal support as set forth herein is deemed appropriate and reasonable pursuant toO.R.C. 3105.18 , taking into consideration all factors as set forth in[R.C.] 3105.18(C)(1) .”
The trial court thus ordered appellant to pay appellee spousal support in the amount of $500 per month for eighteen months.
{¶ 11} On January 16, 2014, the trial court entered a final divorce decree in accordance with its earlier findings. This appeal followed.
I
MARITAL DEBT
{¶ 12} In his first assignment of error, appellant asserts that the trial court abused its discretion by ordering him to pay all of the marital debt. Appellant contends that the court‘s decision is inequitable because appellee incurred the debt “to lavish gifts upon her family, take care of her mother, and be able to buy things for herself.” Appellant further asserts that allocating all of the martial debt to him is inequitable because paying the debts requires him to
A
STANDARD OF REVIEW
{¶ 13} Trial courts enjoy broad discretion when dividing marital property in a divorce proceeding. Elliott v. Elliott, 4th Dist. Ross No. 05CA2823, 2005-Ohio-5405, ¶17; Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989). Accordingly, an appellate court will not reverse a trial court‘s decision regarding the allocation of marital property and debt absent an abuse оf that discretion. Elliott at ¶17. “‘The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, unconscionable, or arbitrary.‘” Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Furthermore, when applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. E.g., Savage v. Correlated Health Serv., Ltd., 64 Ohio St.3d 42, 55, 591 N.E.2d 1216 (1992); Freshwater at ¶77, quoting Graziano, 32 Ohio St.3d at 294, 513 N.E.2d 282 (“‘Absent an abuse of discretion on the part of the trial court, the court of appeals may not engage in what amounts to a substitution of judgment of the trial court.‘“). Moreover, a court that is reviewing whether a trial court abused its discretion when dividing marital property must view the property division in its entirety and consider the totality of the circumstances. Briganti v. Briganti, 9 Ohio St.3d 220, 222, 459 N.E.2d 896 (1984); accord Byers v. Byers, 4th Dist. Ross No. 09CA3124, 2010-Ohio-4424, ¶19; Elliott at ¶17.
R.C. 3105.171
{¶ 14} Although trial courts possess broad discretion tо divide marital property, the Ohio Revised Code requires trial courts to divide marital and separate property equitably between the parties.
{¶ 15} Additionally, “[a]lthough
{¶ 16}
- The duration of the marriage;
- The assets and liabilities of the spouses;
- The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage;
- The liquidity of the property to be distributed;
The economic desirability of retaining intact an asset or an interest in an asset; - The tax consequences of the property division upon the respective awards to be made to each spouse;
- The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property;
- Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses;
- Any retirement benefits of the spouses, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension;
- Any other factor that the court expressly finds to be relevant and equitable.
{¶ 17} At least one Ohio appellate court has recognized, however, that the
“When the couple‘s debts exceed total assets, ‘the parties disparate earnings remain the only source for retiring [the debt] and are appropriately considered in it allocation.’ American Law Institute, Principles of the Law and Family Dissolution: Analysis and Recommendations, Section 4.09(h) (June 2013). An equitable allocation of a marital estate that consists solely of debt necessarily requires a consideration of the parties’ relative economic circumstances, as the debt can only be repaid with a future stream of income, as there is no pool of assets to cover the debts.
* * * *
Because significant unsecured debts often must be paid from a future stream of income, rather than by liquidating marital property, courts will often consider the relative incomes and earning abilities of the parties, despite the absence of those factors from
R.C. 3105.171(F) . Thus, although Ohio courts often purport to apply the factors ofR.C. 3105.171(F) to divide marital debt, because those factors often fail to address the parties’ ability to repay debts, courts often look beyond the specific factors set forth in the statute.”
Polacheck at ¶21 and ¶23.
{¶ 19} In the case at bar, we do not believe that anything in the record shows that the trial court acted arbitrarily, unreasonably or unconsciously by allocating all of the marital debt to appellant. The trial court considered the parties’ economic circumstances and explicitly found that appellant has the ability to repay the debt, but appellee does not. The parties stipulated that both suffer from serious health issues that prevent them from seeking employment. Thus, neither party has any potential to receive employment income. Furthermore, the evidence in the record demonstrates that neither party has any assets to liquidate in order to satisfy the debt. Moreover, appellee does not receive any income whatsoever, while appellant receives approximately $3,000 per month in disability benefits. Thus, considering the totality of the parties’ financial circumstances, we cannot conclude that the trial court abused its discretion by requiring appellant to pay the marital debt.
{¶ 20} Appellant nevertheless asserts that our decision in Elliott demonstrates that the trial court abused its discretion by allocating the marital debt to him. We, however, find Elliott distinguishable from the case sub judice. In Elliott, we determined that the trial court did not abuse its discrеtion by allocating a greater portion of the marital debt to the wife. We observed that the record showed that the wife “retained a far greater share of the parties’ liquid assets,”
{¶ 21} In the case at bar, the facts differ. Unlike Elliott, appellant and appellee do not have any marital assets to satisfy the debt. Appellee has no income source, while appellant receives a $3,000 per month disability benefit. Moreover, even though appellee opened the accounts and incurred the charges, the evidence shows that appellee obtained the accounts during a period when appellant was unable to handle the parties’ finances. Additionally, the trial court found that appellee used the credit cards to obtain groceries, clothing, gifts, and household items. Contrary to appellant‘s argument, appellee did not use the credit cards to “lavish” gifts upon herself and her family. Considering all of the foregoing circumstances, we are unable to cоnclude that the trial court abused its discretion by allocating all of the marital debt to appellant. Given appellee‘s lack of financial resources, the court reasonably could have determined that allocating all of the debt to appellant, who received approximately $3,000 per month, was the most equitable solution under the circumstances.
{¶ 22} We further disagree with appellant that the trial court‘s decision allocating the martial debt to him effectuates an improper division of his disability benefits.1 To support his
{¶ 23} However, in Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, 791 N.E.2d 434, ¶11, the Ohio Supreme Court held that a trial court may consider a party‘s “future Social Security benefits” when equitably dividing marital property. In Neville, the court recognized that pension and retirement benefits are marital assets subject to division, but observed that federal law forbids the transfer or assignment of Social Security benefits. The Neville court explained: “Although a party‘s Social Security benefits cannot be divided as a marital asset, those benefits may be considered by the trial court under the cаtchall category as a relevant and equitable factor in making an equitable distribution.”
{¶ 24} In the case sub judice, the trial court, unlike the Hirzel court, did not attempt to divide appellant‘s disability benefit. Instead, the court considered appellant‘s future disability income in relation to the parties’ abilities to pay the marital debt. Considering appellant‘s future disability income in this context is akin to a trial court considering a party‘s future Social Security benefits when equitably dividing marital property.
{¶ 25} We considered a similar issue in Byers v. Byers, 4th Dist. Ross No. 09CA3124, 2010-Ohio-4424. In Byers, the trial court ordered the husband to pay spousal support in an amount sufficient to pay for the wife‘s health insurance. On appeal, the husband asserted that
{¶ 26} Similarly, in the case at bar the trial court did not overtly order the division of appellant‘s disability benefit. Instead, the trial court considered appellant‘s disability income in relation to the parties’ marital debts when it equitably divided those debts. The court, however, did not actually divide appellant‘s disability benefit. We are not willing to conclude, as appellant requests, that allocating the marital debt to him effectively divided his disability benefit.
{¶ 27} Furthermore, Hirzel and Neville were concerned with dividing Social Security benefits, which federal law flatly prohibits. Even if we determined that allocating the entire marital debt to appеllant effected a division of his separate property, i.e., his disability benefits,
{¶ 28} Thus, after considering all of the above, we are unable to conclude that
{¶ 29} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s first assignment of error.
II
SPOUSAL SUPPORT
{¶ 30} In his second assignment of error, appellant asserts that the trial court abused its discretion by awarding appellee spousal suppоrt. Appellant contends that the trial court should not have considered his disability benefits–his separate property and only source of income–when it determined whether to award spousal support. Appellant further asserts that the trial court failed to indicate the basis for its award in sufficient detail to enable this court to determine that the award is fair, equitable, and in accordance with the law.
{¶ 32}
(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 inаppropriate 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, for 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.
(2) In determining whether spousal support is reasonable and in determining the amount and terms of payment of spousal support, each party shall be considered to have contributed equally to the production of marital inсome.
{¶ 33} When making a spousal support award, a trial court must consider all statutory factors and not base its determination upon any one factor taken in isolation. Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988), paragraph one of the syllabus. Additionally, although a trial court possesses broad discretion to determine whether spousal support is reasonable and appropriate, it must consider the statutory factors 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. Kaechele at paragraph two of the syllabus. In the absence of a request for findings of fact and conclusions of law, however, Kaechele does not require the trial court to list and comment on each factor. Brown v. Brown, 4th Dist. Pike No. 02AP689, 2003–Ohio–304, ¶10. Rather, Kaechele and
{¶ 35}
“When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise * * *, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.”
{¶ 36} “‘[A] trial court has a mandatory duty under
{¶ 37} A trial court‘s failure to substantially comply with the requirements of
{¶ 38} In the case at bar, we agree with appellant that the trial court did not engage in a factor-by-factor analysis of the
{¶ 39} In the case sub judice, the trial court stated that it considered all of the
{¶ 40} Additionally, we find appellant‘s reliance on Baker v. Baker, 4th Dist. Meigs No. 477 (Feb. 10, 1993), misplaced. Appellant contends that Baker held that “[m]inimal findings of fact cannot justify an award of spousal support.” However, that is not what we held in Baker. Instead, we stated: “In reaching its conclusion here, the trial court included minimal findings of fact with respect to the division of debt and no findings of fact related to its award of spousal support. Absent such findings, we have no basis to review the award to determine whether the court abused its discretion in making the award.” (Emphasis added.) Thus, in Baker we stated that we could not review the trial court‘s spousal support award because it did not enter any findings of fact. We did not state that we could not review the trial court‘s spousal support
{¶ 41} Appellant next argues that the trial court abused its discretion by awarding appellee spousal support when his disability benеfits provide his only source of income. Appellant essentially contends that a trial court cannot consider a party‘s separate property when determining whether to award spousal support. We do not agree.
{¶ 42}
{¶ 43} In the case at bar, the trial court obviously considered appellant‘s disability income when it determined whether to award spousal support.
{¶ 44} Moreover, the trial court did not abuse its discretion by awarding appellee spousal support. Even though the court did not specifically apply each of the
{¶ 45} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
SHARON GRAVES, Plaintiff-Appellee, vs. ROY L. GRAVES, Defendant-Appellant.
Case No. 14CA694
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY
{¶ 46} I concur in judgment and opinion with respеct to the first assignment of error. As for the second assignment of error, I respectfully dissent.
{¶ 47} Trial courts generally enjoy broad discretion to determine spousal support issues. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990); Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). Consequently, an appellate court will not reverse a trial court‘s spousal support decision absent an abuse of discretion. Bechtol v. Bechtol, 49 Ohio St.3d 21, 24, 550 N.E.2d 178 (1990); Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989). “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable. E.g., Hufman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).
{¶ 48} This Court has previously found that Social Security benefits cannot be actually divided to effectuate spousal support. Bishman v. Bishman, 4th Dist. Washington No. 03CA54, 2005-Ohio-4379, ¶ 13. In Bishman, the trial court ordered the appellant husband to pay one-half of his monthly Social Security benefit to the appellee wife.
{¶ 49} This Court also stated in Bishman, at ¶ 10 and ¶ 11:
In general, retirement and pension benefits earned during the course of the marriage are marital assets. As such, they must be considered in the division of property. Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 178, 559 N.E.2d 1292.
However, pursuant to federal law, Social Security benefits are not subject to
division in a divorce proceeding. Hoyt, at fn3. Section 407(a), Title 42, U.S.Code “forbids any transfer or assignment of Social Security benefits and, in general, protects these benefits from ‘execution, levy, attachment, garnishment, or other legal process.“’ Neville v. Neville, 99 Ohio St.3d 275, 791 N.E.2d 434, 2003-Ohio-3624, ¶ 7.
{¶ 50} In Neville, the Ohio Supreme Court acknowledged that Social Security benefits are not considered a marital assеt and that federal law prohibits the division of such benefits in a divorce proceeding. Nonetheless, the Court held that “[i]n making an equitable distribution of marital property in a divorce proceeding, a trial court may consider the parties’ future Social Security benefits in relation to all marital assets.”
{¶ 51} A more recent case from this Court addressed an award of spousal support in relation to a parties’ Social Security benefit. In Byers v. Byers, 4th Dist. Ross No. 09CA3124, 2010-Ohio-4424, this Court upheld an award of spousal support even though the only income that appellant received was from his Social Security benefits.2 This Court found that “the trial court did not overtly order the division of Appellant‘s Social Security benefits: it ordered him to pay money, from whatever source, to cover Appellee‘s health insurance.”
{¶ 52} This case is similar to Byers in that no overt order was made dividing the appellant‘s Social Security benefit. However, in contrast to Byers, the appellant does not own any other real properties; and he does not own substantial assets in the form of retirement and investment accounts. Appellant has access to very little personal property. He only had $175 in a checking account at the time of the final hearing. The appellant does not have any motor vehicles. The appellant is 73 years old with no ability to work. All of the marital debt in the total amount of approximately $14,899 was allocated to the appellant. Appellant‘s net income after deductions for taxes is only $2,819.19.
{¶ 53} In the case at bar, appellant has no other source of income nor does he have any other assets from which to derive monies to pay the spousal support order. Although not actually or overtly encumbered by the spousal support order, the Social Security benefits are the only source of income from which the appellant will have available to pay the spousal support. Presumably, he will also be using his Social Security benefits to pay towards the $14,899 in marital debt that was allocated to him. Federal and state law should not be able to be sidestepped by not overtly or actually stating that the Social Security benefits shall be divided with 16-17% to wife and 83-84% to husband. This actual effectuation of the payment for spousal support seems to be prohibited by federal and state law.
{¶ 55} I would affirm the trial court‘s judgment with respect to the allocation of marital debts; however, I would reverse the judgment with respect to the spousal support award.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herеin 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 Vinton County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to
McFarland, J.: Concurs in Judgment & Opinion
Hoover, J.: Concurs in Judgment & Opinion as to Assignment of Error I and Dissents, with attached opinion, as to Assignment of Error II
For the Court
BY:
Peter B. Abele
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.