Lead Opinion
{¶ 3} After the complaint was filed, a visiting judge was assigned to the case and temporary orders were issued. During the pendency of the divorce, both parties filed contempt proceedings, and both were found in contempt of the court's temporary orders.
{¶ 4} The final divorce hearing began on February 17, 2006, and was continued to June 16, 2006. Final judgment in the case was delayed due to a pending appeal concerning the contempt judgments. On March 9, 2007, we *3
reversed the contempt judgments in Hiscox v. Hiscox, 7th Dist. No. 06-CO-18,
{¶ 5} On March 16, 2007, the court filed its judgment entry of divorce, along with findings of fact and conclusions of law. The record indicates that Apрellant was 52 years old and Appellee was 49 years old at the time the divorce decree was issued. The court determined that Appellant had retirement benefits from the Ohio State Teachers Retirement System (STRS) worth $375,180, as well as an unspecified pension from the Connecticut State Teachers Retirement System. The parties owned a home in Leetonia, Ohio, but had sold it during the pendency of the divorce for a net gain of $101,073, and the money was being held in escrow. The parties stipulated to the division of their personal property. Each party owned one automobile. The court identified two annuities as marital assets worth $54,362 and $15,738 respectively. Appellee had a 401(k) plan worth $400. Appellant owned a life insurance policy with a cash surrender value of $3,849, as well as term life insurance with his employer. The court found that Appellant had received a severance check during the pendency of the divorce proceedings in the amount of $12,675. The court found that the parties had received unspecified tax refunds for the years 2005 and 2006.
{¶ 6} The court found that Appellant had accumulated substantial credit card debt on three accounts during the divorce proceedings, and had failed to make payments that resulted in late fees and penalties. The debt on the one account was $2,700, and was over $15,000 on each of two other accounts from Sears and Seven Seventeen Credit Union. *4
{¶ 7} The court determined that an equitable, rather than an equal, division of marital assets was appropriate. The court divided Appellant's Ohio STRS pension equally between the parties, and granted the Connecticut pension to Appellant. The court ordered Appellant to maintain Appellee as beneficiary of two life insurance policies until such time as Appellee began receiving benefits from Appellant's STRS pension. The court allowed Appellant to keep the cash value of his insurance policy, as well as his severance check. The court ordered Appellant to be responsible for the credit card debt he had amassed. The court equally divided the two annuities and the tax refunds.
{¶ 8} The court also ordered Appellant to pay $3,000 per month in spousal support. The court set no expiration date on the payment of spousal support.
{¶ 9} The court ordered Appellant to pay $5,000 of Appellee's attorney's fees due to his, "dilatory response to discovery orders, failure to appear at previous hearing, and due [to] the plaintiff's inability to adequately prosecute this case financially with counsel". (3/16/07 Divorce Decree, p. 11.)
{¶ 10} Appellant filed this timely appeal on March 30, 2007. There are six assignments of error in this appeal.
{¶ 14} Appellant's first three assignments of error deal with spousal support. A trial court has discretion in awarding spousal support and in determining the amount of spousal support, and the trial court's decisions regarding spousal support will not be reversed on appeal except upon a showing of abuse of discretion. Kunkle v. Kunkle (1990),
{¶ 15} R.C.
{¶ 16} "(B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section
{¶ 17} "An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, from future income or otherwise, as the court considers equitable.
{¶ 18} "Any award of spousal support made under this section shall terminate upon the death of either party, unless the order containing the award expressly provides otherwise.
{¶ 19} "(C)(1) In determining whether spousal support is appropriatе 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:
{¶ 20} "(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section
{¶ 21} "(b) The relative earning abilities of the parties;
{¶ 22} "(c) The ages and the physical, mental, and emotional conditions of the parties;
{¶ 23} "(d) The retirement benefits of the parties;
{¶ 24} "(e) The duration of the marriage;
{¶ 25} "(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;
{¶ 26} "(g) The standard of living of the parties established during the marriage; *7
{¶ 27} "(h) The relative extent of education of the parties;
{¶ 28} "(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
{¶ 29} "(j) The contribution of each party to the educatiоn, 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;
{¶ 30} "(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;
{¶ 31} "(l) The tax consequences, for each party, of an award of spousal support;
{¶ 32} "(m) The lost income production capacity of either party that resulted from that party's marital responsibilities;
{¶ 33} "(n) Any other factor that the court expressly finds to be relevant and equitable.
{¶ 34} "(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 income."
{¶ 35} Appellant contends that the $3,000 per month spousal support award is irrational and unjustified. He asserts that Appellee's claimed expenses were speculative, padded with items that were not true expenses, and that at most, her monthly expenses would be $2,555. According to Appellant, Appellee's estimated *8 net income was over $1,000 per month, leaving net expenses of $1,555. Appellant concludes that the spousal support award constitutes an abuse of discretion.
{¶ 36} Appellant's argument is premised largely on his conclusion that the spousal support award exceeds Appellee's demonstrated need for support. We have repeatedly held that, "need is but one factor among many that the trial court may consider in awarding reasonable spousal support." Waller v. Waller,
{¶ 37} The record indicates that the trial court was aware of and considered the factors in R.C.
{¶ 38} We now turn to the question of whether the court retained jurisdiction to modify the spousal support award. To retain jurisdiction over spousal support, the trial court must satisfy the requirements of R.C.
{¶ 39} "(E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divоrce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies:
"(1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decreecontains a provision specifically authorizing the court to modify theamount or terms of alimony or spousal support." (Emphasis added.)
{¶ 40} The Ohio Supreme Court has held that, "a trial court has the authority to modify or terminate an order for alimony or spousal support only if the divorce decree contains an express reservation of jurisdiction." Kimble v. Kimble,
{¶ 41} In the instant case, the divorce decree does not specifically use the phrase "reserve jurisdiction," nor does it track the language of R.C.
{¶ 42} Some appellate courts have held that there is no express reservation of jurisdiction to modify spousal support simply because the court attaches the phrase "until further order of the court" at the end of the divorce decree. In re Dissolution of Marriage of Richards, 4th Dist. No. 02CA2,
{¶ 43} We have been unwilling to find an express reservation of jurisdiction to modify spousal support simply because boilerplate "until further order of the court" language is inserted at the end of a divorce decree. Keck v. Keck (Aug. 10, 2000), 7th Dist. No. 98 CA 247. However, when the trial court specifically states that the spousal support award itself shall continue until further order of the court, and when this statement occurs within the court's discussion of spousal support, we are presented with a much clearer indication that the court fully expected that it would have jurisdiction over subsequent spousal support orders.
{¶ 44} Further, it would have been unusual for the trial court not to retain jurisdiction in light of the facts of this case. The spousal support award was permanent, the parties are not of advanced age, the actual award of spousal support *11
is considerable, and the court does not explain why failing to reserve jurisdiction over spousal support would have been equitable or appropriate. It is generally held to be reversible error when a trial court does not retain jurisdiction over a spousal support award when no explanation is given as to why spousal support is being awarded indefinitely. Bardnell v. Bardnell,
{¶ 45} Appellant also contеnds that the trial court abused its discretion in failing to set a termination date for spousal support. When the divorce decree is silent as to a termination date, spousal support ends upon the death of either party. R.C.
{¶ 46} "Except in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has the resources, ability and potential to be self-supporting, an award of * * * [spousal support] should provide for the termination of the award, within a reasonable time and upon a date certain, in *12 order to place a definitive limit upon the parties' rights and responsibilities." Id., at paragraph one of the syllabus.
{¶ 47} The record indicates that the parties were married almost 29 years, that Appellee had only a high-school education, that she was making slightly above minimum wage, and there is no indication that she has any specialized training. The length of the marriage in this case would justify spousal support of indefinite duration. "[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),
{¶ 48} In addition, when the court retains jurisdiction to modify spousal support, it has been held that the court's failure to specify a termination date for spousal support does not constitute an award for life. Donese v. Donese (Apr. 10, 1998), 2nd Dist. No. 97-CA-70;Bowen, supra, 132 App.3d at 627,
{¶ 49} For the aforementioned reasons, we overrule Appellant's first, second and third assignments of error.
{¶ 51} The parties correctly cite the standard of review in decisiоns involving the division of marital property, which is that the trial court's decision will not be reversed absent an abuse of discretion.Cherry v. Cherry (1981),
{¶ 52} Marital property in a divorce case should be divided equally, unless the trial court determines that an equal division would be inequitable. R.C.
{¶ 53} A reviewing court examines the overall equity of the division of marital assets and debt, rather than engage in a detailed analysis of every jot and tittle of marital property: "[I]t is not this court's role to conduct an item by item review of the *14
marital assets and liabilities. Our review is limited to the equity, i.e., fairness * * *." Fergus v. Fergus (1997),
{¶ 54} The trial court is required to consider the factors listed in R.C.
{¶ 55} "(F) In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors:
{¶ 56} "(1) The duration of the marriage;
{¶ 57} "(2) The assets and liabilities of the spouses;
{¶ 58} "(3) 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;
{¶ 59} "(4) The liquidity of the property to be distributed;
{¶ 60} "(5) The economic desirability of retaining intact an asset or an interest in an asset;
{¶ 61} "(6) The tax consequences of the property division upon the respective awards to be made to each spouse;
{¶ 62} "(7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property;
{¶ 63} "(8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses;
{¶ 64} "(9) Any other factor that the cоurt expressly finds to be relevant and equitable." *15
{¶ 65} R.C.
{¶ 66} Appellant contends that there were five errors in the divisions of marital property. He first argues that his severance check worth $12,675 was not a marital asset. As a basic starting point, though, "severance pay received during the marriage is marital property[.]"McClure v. McClure (1994),
{¶ 67} R.C.
{¶ 68} Appellant's second argument is that the trial court failed to consider that a part of his STRS teacher's pension was actually earned prior tо his marriage and *16
should have been deducted as a separate asset rather than a marital asset. It is well-established that a vested pension plan accumulated during a marriage is a marital asset. Holcomb v. Holcomb (1989),
{¶ 69} Appellant's third argument is that the trial court failed to explain why it did not divide the marital property equally. As stated earlier, the starting point for the division of marital property is that it should be divided equally, but the trial court is free to make an unequal division for equitable reasons. Appellant contends that *17 there was a disparity of almost $49,000 in the division of marital property in Appellee's favor. Appellant, though, has neglected to include a number of very significant elements in his calculations, including the fact that the trial court credited him with the $12,675 severance payment as a marital asset. The trial court also concluded that Appellant personally benefitted when their home had been sold because he did not have to make eleven mortgage payments of $1,500 each, for a total benefit of $16,500. In addition, Appellant incorrectly lists a substantial amount of credit card debt in his calculation of marital debt, when in fact, the trial court attributed the debt to Appellant as his own separate debt. The credit card debt from Sears and Seven Seventeen Credit Union amounted to $30,000, and this should not have been included in Appellant's calculations of the division of marital property. Thus, from these items alone it appears that Appellant should have added $59,000 to his side of the ledger, which is more than the $49,000 amount he argues that Appellee received above and beyond her equal share of the marital property. The record does not reflect any abuse of discretion in the division of the marital property.
{¶ 70} Appellant's fourth argument is that the trial court failed to divide their personal property. A trial court is required to equitably divide all of the marital property as part of the divorce. R.C.
{¶ 71} Fifth and finally, Appellant discusses the 2006 tax refund that was equally divided as a marital asset. A tax refund for income earned during the marriage is marital property. Brewer v. Brewer, 4th Dist. No. 2003CA00087,
{¶ 72} We can find no abuse of discretion in the division of marital property, and Appellant's fourth assignment of error is overruled.
{¶ 74} Appellant argues that it was improper for the trial court to order him to keep his ex-wife as a beneficiary on two life insurance policies. The court ordered Appellant to maintain Appellee on his insurance until Appellee began receiving her designated portion of benefits from the STRS pension plan. A court may require a party to provide life insurance as sеcurity for all or part of a division of marital property. McCoy v. McCoy (1993),
{¶ 76} Appellant argues that the trial court's order for him to pay $5,000 to Appellee for attorney's fees violated the Double Jeopardy clause of the Fifth Amendment, and constitutes cruel and unusual punishment under the Eighth Amendment. These are both protections that apply only to criminal proceedings, hence, they have no bearing in this case, a civil divorce proceeding. Appellant also *20 claims that the court was incorrect when it based the award of attorney's fees in part on Appellee's inability to pay her attorney. Appellant argues that Appellee was awarded certain liquid assets as part of the divorce, and that she could have used these funds to pay her attorney.
{¶ 77} "It is well-established that an award of attorney fees is within the sound discretion of the trial court." Rand v. Rand (1985),
{¶ 78} Under R.C.
{¶ 79} In the instant case, the court based its award of attorney's fees on a number of factors including Appellant's failure to respond to discovery orders, failure to appear at hearings, as well as Appellee's financial inability to prosecute the case. The record indicates that Appellee has few assets and very little earning ability. R.C.
{¶ 80} The record further indicates that Appellee had amassed over $16,000 in attorney's fees before the final divorce hearing had concluded. The trial court awarded Appellee partial attorney's fees of $1,500 on February 17, 2006, due to Appellant's failure to appear at a pre-trial hearing. Appellant's obstructive behavior further escalated Appellee's attorney's fees after the court had ordered the partial award of attorney's fees. Appellee was forced to file motions to compel discovery, issue subpoenas, obtain continuances, provide all but one of the exhibits used at trial, prepare final documents in the case, and pay for settlement conference expenses even though Appellant refused to abide by the terms of the settlement. All this occurred while Appellant was in arrears in paying temporary spousal support.
{¶ 81} Appellant cites the case of Boney v. Boney, 5th Dist. No. 2005CA00152,
{¶ 82} Having found no reversible errors or abuse of discretion in this case, we affirm the judgment of the trial court in full.
Vukovich, J., concurs.
DeGenaro, P.J., concurs in part and dissents in part; see concurring in part and dissenting in part opinion. *23
Dissenting Opinion
{¶ 83} I must respectfully dissent, in part, from the majority because the trial court erred in several key respects. Speсifically, I would sustain appellant's first two assignments of error, because neither the record nor the final judgment entry provides sufficient support for the amount and duration of the trial court's spousal support award. I would also sustain appellant's fourth assignment of error for three reasons. First, the trial court erred by crediting appellant with the receipt of the severance package, where there was no express finding of financial misconduct. Second, the trial court abused its discretion when it arbitrarily, and without explanation chose the date of the final decree as the marriage end-date. Consequently, appellant is correct in arguing that the trial court abused its discretion by treating his 2006 tax refund as a marital asset. Third, the trial court erred by treating the entirety of appellant's STRS pension as a marital asset, since аppellant presented evidence that a portion thereof was clearly non-marital. Accordingly, I would affirm the judgment of the trial court in part, reverse in part, and remand this matter to the trial court for further proceedings.
{¶ 85} It is well-established that a trial court must indicate the basis for its award of spousal support in sufficient detail to enable a reviewing court to determine whether the award is fair, equitable and in accordаnce with the law. Kaechele v. Kaechele (1988), 35 Ohio St .3d 93, 97; Heslep v. Heslep (June 14, 2000), 7th Dist. No. 825. In order to accomplish this result, "the entry must provide some illumination of the facts and reasoning underlying the judgment." (Emphasis added.)Lepowsky v. Lepowsky, 7th Dist. No.
{¶ 86} In many ways, the entry in this case is similar to the entry described in Lepowsky. In that case, the trial court's judgment entry stated that it considered the statutory factors, and listed its findings with regard to some of those factors. Id. at ¶ 52. However, "the trial court did not explain how it arrived at the amount it awarded in sufficient detail to enable appellate review." Id. We noted that although both parties presented evidence of their respective expenses, "none of [those] facts supported] the amount of the trial court's spousal support award and the trial court did not discuss whether any of the expenses claimed by the parties were actually reasonable." Id. at ¶ 54.
{¶ 87} Since neither the trial court's judgment entry nor the record in Lepowsky indicated how the trial court dеtermined the amount of spousal support it awarded was an appropriate and reasonable amount, we reversed the trial court's decision and remanded the case so the trial court could set forth the basis of its award in sufficient detail to enable appellate review. Id. at ¶ 55.
{¶ 88} Similarly, the trial court here did list many of those statutory factors *25 when making its findings of fact. However, the court did not provideany explanation of how it reached its award. As in Lepowsky, the trial court failed to discuss the impact of the parties' expenses and whether those expenses were even reasonable. Nor was there any discussion of the impact of the property division upon the spousal support award. Instead, the decree just states that appellant shall pay $3,000.00 per month to appellee for an indefinite period of time.
{¶ 89} Fundamentally, it is unclear why the trial court determined its spousal support award was reasonable and appropriate. This lack of clarity makes it impossible to review whether the trial court abused its discretion in making the award. Further, I disagree with the majority's assertion that the record "adequately reflects the fairness of the award." I would sustain appellant's first two assignments of error; reverse the trial court's spousal support award; and remand to the trial court for a more thorough analysis.
{¶ 92} When a trial court divides a couple's marital property at divorce, it must divide all the couple's real and personal property at the time of the divorce and all *26
interests a couple had in real and personal property. R.C.
{¶ 93} Of course, there is a mechanism through which a trial court can consider a parties' financial conduct during the marriаge when dividing a couple's marital property. R.C.
{¶ 94} The majority concludes that language in the trial court's judgment entry provides a clear indication as to its belief that appellant committed financial misconduct. I disagree. Although the trial court did state that appellant failed to explain what happened to the severance check proceeds, and that appellee did not benefit from the funds, it failed to make an express finding of financial misconduct pursuant to R.C.
{¶ 95} Absent such an express finding by the trial court, we cannot simply presume misconduct. Moreovеr, the evidence at trial does not support a finding of financial misconduct. "The burden of proving financial misconduct is on the *27
complaining party." Gallo v. Gallo, 11th Dist. No. 2000-L-208,
{¶ 97} The date a marriage ends is normally the date of the final hearing in the divorce action. R.C.
{¶ 98} In this case, the parties did not stipulate to the date the marriage ended and the trial court found that the marriage ended on March 16, 2007, the date of its *28 divorce decree; a date well after the final hearing in June 2006. However, the trial court provided no reasoning as to why the equities dictated that the marriage end on a date so long after the final hearing.
{¶ 99} The trial court's determination of the marriage end-date was an abuse of discretion. There are three options for the marriage end-date in this case which would comport with the statute: (1) the statutory default of the final hearing date in June, 2006; (2) the date of the parties' separation in August, 2004; or (3) the date appellee filed her complaint for divorce in June, 2005. It was within the trial court's discretion to pick any of those dates, but it must state its reasons for purposes of appellate review. Treatment of appellant's 2006 tax refund as a marital asset depends on the marriage end-date chosen. Because the trial court's determination of the marriage end-date was an abuse of discretion I would also conclude that the trial court abused its discretion by treating appellant's 2006 tax refund as a marital asset.
{¶ 101} The majority insists that there is insufficient evidence to show the amount that appellant contributed to the STRS pension prior to the marriage, and that even if the trial court had made such a determination, that amount would have been de minimus compared to the amount contributed during the marriage. The majority therefore concludes that the trial court did not abuse its discretion in finding the entirety of the STRS pension a marital asset.
{¶ 102} However, as the majority concedes, evidence in the form of an STRS statement, (Plaintiff's Exhibit 15) does demonstrate that appellant contributed $5,687.41 to that pension between the 1976-1977 and 1981-1982 school years. The parties married on June 17, 1978, and thus contributions made during the 1976-77 and 1977-78 school years should have been treated as appellant's separate property. Although the STRS statement does not give a specific breakdown as to the contributions for the premarital school years, I believe that the trial court could and should have made an approximate calculation based on the figures it had available.
{¶ 103} Further, the fact that premarital contributions may have been "de minimus" compared to marital ones does not mean that the trial court may simply treat the premarital contributions as marital. Only the proportion of a pension that was earned during the marriage can be treated as a marital asset. Makar, at ¶ 18. This error is further compounded by the trial court choosing an ending date of the marriage contrary to R.C.