{¶ 2} We conclude that the trial court properly determined the de faсto date was the date Diane filed the complaint since neither party made any attempt to reconcile and both parties maintained separate homes and finances from that date on. We also conclude the trial court did not abuse its discretion when determining that Thomas would not have to pay Diane any spousal support given the trial court's proper review and application of the relevant statutory factors. Further, we conclude the trial court properly denied Diane's request for temporary child and spousal support since she waived this argument at an earlier hearing and more importantly was receiving support from Thomas for the entire duration of the pending divorce. Finally, we conclude the trial court properly denied Diane's request for attorney fees and expenses since she had sufficient funds to pay these costs on her own. Moreover, Diane failed to introduce any evidence that she was in any way prevented from litigating these issues.
{¶ 3} However, we conclude the trial court erred by disregarding the parties agreement regarding the awarding of tax dependency exemptions and that portion of the judgment is reversed. We similarly conclude that the trial court erred by deviating from the cаlculated amount of support because the record reflects no evidence of any extraordinary situation which require such a deviation and that portion is reversed and remanded for further proceedings. Accordingly, the judgment of the trial court is affirmed in part, reversed in part and remanded.
{¶ 5} On June 11, 2002, the trial court was presented with written stipulations regarding the disposition of the marital and separate assets and liabilities of the parties. The parties also presented the trial court with an amended shared-parenting plan that was approved by the Guardian ad Litem. The parties agreed that the only issues to be resolved were the determination of the period constituting "during the marriage"; the disposition of Diane's request for temporary child and spousal support; the calculation of ongoing child support; and, the determination of whether Diane was entitled to an award of attorney fees. These issues were tried before the court on June 11, 2002 and the trial court rendered its final judgment on August 13, 2002.
{¶ 6} Diane has presented this court with six assignments of error. For the sake of clarity, they will not be addressed in the numerical order originally assigned by Diane. First, Diane asserts:
{¶ 7} "The court erred in determining the period `during the marriage' to be from December 28, 1981 to the filing date of the complaint in 2001."
{¶ 8} Diane argues that the trial court erroneously selected the filing date of the complaint as being the date of the termination of marriage bеcause the trial court based its decision upon a stipulation as to the date that was never made by the parties. However, this error made by the trial court when setting the de facto date of termination is harmless since its decision was otherwise supported by the record.
{¶ 9} Trial courts possess broad discretion in choosing the appropriate termination of marriage date for the purposes of valuing property. Berish v. Berish (1982),
{¶ 10} The duration of the marriage is critical in distinguishing marital, separate and post-separation assets and liаbilities, and determining appropriate dates for valuation. See Berish. Trial courts often terminate marriages as of the date of the final hearing. R.C.
{¶ 11} Generally, trial courts use a de facto termination of marriage date when the parties separate, make no attempt at reconciliation, continually maintain separate residences, separate business activities and/or separate bank accounts. See Gullia v. Gullia
(1994),
{¶ 12} In the present case, the evidence indicates that the parties were in fact maintaining separate residences and there was no attempt at reconciliation. Diane had been living mainly off of her inheritance in order to pay the monthly bills and rent for her condominium while Thоmas continued to pay the mortgage on the former marital residence. Significantly, Diane served Thomas with the complaint which contained a restraining order prohibiting Thomas from having anything to do with the transfer, control, or managing of property, bank accounts, or savings accounts. We find these facts clearly indicate that the parties did not intend to reconcile. Although the trial court may have erroneously statеd in its journal entry that the reason for setting the de facto date of termination at the time of the filing was the stipulation by the parties, this was harmless error. We conclude there is enough evidence in the record for us to affirm the trial court's decision to choose that particular date. This assignment of error is meritless.
{¶ 13} Next, Diane asserts:
{¶ 14} "The court erred in not awarding spousal support."
{¶ 15} "It is well-established that the trial court enjoys wide latitude in determining the appropriateness as well as the аmount of spousal support. Bolinger v. Bolinger (1990),
{¶ 16} In making a spousal support award, a trial court must consider all of the relevant factors in R.C.
{¶ 17} After a trial court divides the marital property, it must determine whether it will award spousal support. R.C.
{¶ 18} In conducting this determination, the trial court must consider all the statutory factors and not consider any one factor taken in isolation. Kaechele at 96. The goal of this exercise is to achieve an equitable result. Id. We recognize that whether thе parties' standard of living has been altered as a result of the divorce, or whether the parties will no longer enjoy a similar standard of living as that previously enjoyed during the term of the marriage, is not dispositive of the equitableness of a spousal support award. See Kaechele.
{¶ 19} Here, the trial court determined that Thomas is a forty-five year old judge in relatively good health. Diane is only forty-two years old, also in good health, and hаs a teaching degree and contract with Perry Local School District. The trial court further determined that neither party's standard of living has suffered since the divorce. Admittedly, Thomas' income of $93,417 per year is much greater than Diane's income of $37,812. But, we conclude that after child support has been awarded to Diane in the calculated amount, the disparity in income will be greatly reduced. Accordingly, the trial court did nоt abuse its discretion by failing to award spousal support to Diane. This assignment of error is also meritless.
{¶ 20} As her next assignment of error, Diane asserts:
{¶ 21} "The court erred in not establishing or awarding any pendente lite child or spousal support."
{¶ 22} Diane argues that the trial court abused its discretion by failing to award temporary spousal support throughout the pending divorce proceedings, despite the fact that Thomas began sending checks to Diane and the children soon after she filed for divorce. We disagree. Pursuant to Civ.R. 75,
{¶ 23} "(1) When requested in the complaint, answer, or counterclaim, or by motion served with the pleading, upon satisfactory proof by affidavit duly filed with the clerk of the court, the court or magistrate, without oral hearing and for good cause shown, may grant spousal support pendente lite to either of the parties for the party's sustenance and expenses during the suit and may make a temporary order regarding the support, maintenance, and allocation of parental rights and responsibilities for the care of children of the marriage, whether natural or adopted, during the pendency of the action for divorce, annulment, or legal separation." Id.
{¶ 24} Courts are entrusted with immense discretion in determining the appropriate amount of temporary support to be awarded a spouse.Gullia v. Gullia (1994),
{¶ 25} Here, the court stated in its journal entry regarding temporary spousal support:
{¶ 26} "Plaintiff fails to acknowledge that on July 3, 2001, this Court had a status conference with then Plaintiff's Attorney, Manav Raj, Esq., and Defendant's Attorney Luke Gallagher, and that at that conference, the Attorneys informed the Court that they were working out all issues, that Defendant who has been the sole support of his family, was adequately supporting his wife and children and pаying all expenses. That when some of the marital debts were paid without need for Court Orders, the Defendant increased his support to the family."
{¶ 27} This statement made by the trial court is supported by evidence adduced at trial that Thomas had been sending three hundred dollars twice a month to Diane shortly after she filed for divorce and then later, after the July 3 hearing, increased the payments to four hundred dollars every two weeks. Additionally, Thomas continued to pay the mortgage on the marital home, the credit card bills, the insurance bills, and all other marital debt payments. In light of this evidence, we conclude the trial court did not abuse its discretion by not ordering Thomas to pay Diane temporary spousal support. This assignment of error is also meritless.
{¶ 28} As her next assignment of error, Diane asserts:
{¶ 29} "The trial court erred in failing to award attorney fees and expenses."
{¶ 30} R.C.
{¶ 31} In considering whether or not to award attorney's fees in a divorce proceeding, the trial court must сonsider the factors set forth in R.C.
{¶ 32} Here, there was evidence that Diane had recently received an inheritance of $26,000 with much of that remaining at the time of the divorce. These funds were available to her for payment of her own attorney fees. Further, Diane testified that she paid the $3,000 retainer to her first attorney with marital funds taken out of a jоint account. Considering our conclusion that the trial court did not err in failing to award spousal support, we cannot now say that the trial court erred in failing to award attorneys fees for much the same reason. Diane had the resources to pay the attorneys fees and in was in no way hindered from fully litigating her rights. Accordingly, this assignment of error is meritless.
{¶ 33} The next assignment of error we must address asserts:
{¶ 34} "The trial court erred in its award of the tax dependency exemption."
{¶ 35} Diane argues the trial court erred in deviating from the parties' shared parenting plan which provided: "The father shall have the tax credit and the right to claim Leigh as dependent for federal, state, and local income tax purposes, and Rosemary even-numbered years. When Leigh emancipates, the parties will split Paul's exemption."
{¶ 36} Pursuant to R.C.
{¶ 37} Finally, Diane's remaining assignment of error asserts:
{¶ 38} "The trial court erred in its determination of child support."
{¶ 39} Diane argues the trial court erred in deviating from the child support guideline amount of $1,385.00 to $1,000.00 without explanation. In contrast, Thomas claims the trial court properly deviated from the calculated amount based upon the amount of time he would be spending with thе children and the fact that he was solely responsible for transporting the children.
{¶ 40} Generally, courts use the Ohio Child Support Guidelines in ascertaining the appropriate level of child support. Coleman v.Campbell, 11th Dist. No. 2001-G-2401,
{¶ 41} R.C.
{¶ 42} R.C.
{¶ 43} "After figuring [the initial calculation on the worksheet], the court may consider factors that lean toward deviation from this amount. In dоing so, the court must first set forth the presumed amount as set forth in Ohio's Child Support Guidelines. Then, the court must find and state that this amount would be unjust or inappropriate and that this amount would not be in the child's best interests. In addition, the court must set forth findings of fact supporting this determination and the basis for the deviation. R.C.
{¶ 44} In this case, the trial court deviated from the child support guidelines calculation of $1,385.00 to $1,000 per month apparently because of the amount of time Thomas would be spending with the children and the cost of the children's transportation to and from Diane's home. However, the evidence adducеd does not indicate a situation which could be classified as extraordinary. In fact, it appears that the schedule in this case does not differ in any meaningful way from a standard parenting visitation schedule. This cannot support deviation of more than twenty-five percent. Thomas will not be spending an extraordinary amount of time with the children, nor will he have any extraordinary travel expenses from transporting the children hаlf an hour each way. We conclude the expenses complained of by Thomas to be nothing more than the cost of being a parent and are in no way extraordinary. Accordingly, the trial court abused its discretion by permitting such deviation. Diane's third assignment of error is meritorious and this portion of the judgment is reversed and remanded to the trial court for further proceedings.
{¶ 45} In conclusion, the trial court erred by modifying the agreement between the parties regarding the tax dependency exemptions and this portion of the judgment is reversed and modified to reflect the intent of the parties. Further, the trial court erred in deviating from the calculated and presumptively correct amount of child support and this portion of the judgment is reversed and remanded for the proper calculation of child support.
{¶ 46} Accordingly, the judgment of the trial court is affirmed in part, reversed in part and remanded to the trial court for further consideration.
Waite, P.J. and Vukovich, J., concur.