J. LAWRENCE HUTTA v. KELLEY L. HUTTA
Case No. 10CAF040031
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 17, 2011
2011-Ohio-3041
Julie A. Edwards, P.J., W. Scott Gwin, J., William B. Hoffman, J.
NUNC PRO TUNC OPINION. [Please see original opinion at 2011-Ohio-2762.] Civil Appeal from Delaware County Court of Common Pleas, Domestic Relations Division, Case No. 04DRA070312. Affirmed.
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 17, 2011
APPEARANCES:
For Plaintiff-Appellee: GERALD J. BABBITT, 503 S. Front Street, Suite 200, Columbus, Ohio 43215
For Defendant-Appellant: WOLINETZ LAW OFFICE, LLC, Barry H. Wolinetz, Kelly M. Gwin, 250 Civic Center Drive, Suite 100, Columbus, Ohio 43215
{¶1} Defendant-appellant Kelley Hutta appeals a judgment of the Delaware County Common Pleas Court, Domestic Relations Division, ordering appellee J. Lawrence Hutta to pay her spousal support in the amount of $12,000.00 per month up to April 1, 2017.
STATEMENT OF FACTS AND CASE
{¶2} Appellant and Appellee were married on June 11, 1983, and three daughters were born as issue of their marriage. Two of the children are now emancipated.
{¶3} The parties enjoyed a luxurious standard of living during the marriage due to Appellee‘s successful orthodontiс practice. The parties owned a large custom-built home in a golf course community and a $5 million dollar Florida condominium. They privately educated their children. They lavished expensive gifts, allowances and automobiles upon family members. Appellant had the primary responsibilities of raising the three children and maintaining the household.
{¶4} Appellee filed for divorce on July 12, 2004, after 21 years of marriage. Appellee is self-employed thrоugh his orthodontic practice, J. Lawrence Hutta D.D.S., Inc. The trial court established that his salary is $258,000.00 per year for purposes of determining spousal support. Appellant, who has an associate‘s degree, was a career homemaker for a majority of the marriage. The trial court estimated she is currently able to earn a salary of $20,000.00 to $25,000.00 per year. At the time of the divorce, both parties were in their late forties and in good health.
{¶6} Appellant filed an appeal. On July 28, 2008, this Court reversed and remanded, finding the trial court failed to consider the totality of the cirсumstances regarding spousal support, including Appellee‘s income after the property division, the parties’ standard of living, the long duration of the marriage, the disparate income and earning power of the parties, and Appellant‘s responsibility for caring for the children. We further found the trial court abused its discretion in limiting spousal support to a duration of eight years without a stated justification, and in light of evidence that reflected an unlikelihood Appellant could develop a meaningful career outside the home as of the time support would terminate, and that she would be unable to access retirement accounts for at least one and a half years to five years after termination of support. Hutta v. Hutta, 177 Ohio App.3d 414, 894 N.E.2d 1282, 2008-Ohio-3756.
{¶7} Upon remand, the trial court heard testimony and the parties entered into certain stipulations, to wit: “the ‘error date’ for purposes of this remand is to be April 4, 2006; the stipulated vocational evaluation of the wife presented at the time of the original trial (indicating an income potential of up to $25,000) is to be used by the court; and the daily treasury 10 year rate, as of April 4, 2006, is 5.06%.”
{¶8} After remand, the trial court ordered Appellee to pay Appellant spousal support in the amount of $9,708.00 per month from April 4, 2006, through April 1, 2009,
{¶9} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION WHEN IT FAILED TO PROPERLY CONSIDER THE PARTIES’ INCOMES FROM ALL SOURCES PURSUANT TO THIS COURT‘S PREVIOUS OPINION AND PURSUANT TO
{¶10} “II. THE TRIAL COURT ERRED WHEN IT IMPUTED WIFE‘S PROPERTY SETTLEMENT AS CASH INCOME TO HER.
{¶11} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION REGARDING ITS DETERMINATION OF THE AMOUNT OF SPOUSAL SUPPORT PAYMENTS.
{¶12} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION REGARDING ITS DETERMINATION OF THE DURATION OF SPOUSAL SUPPORT PAYMENTS.”
I
{¶13} In her first assignment of errоr, Appellant argues the magistrate failed to consider all of Appellee‘s income upon remand. Appellant argues it is unclear what amount of income the court actually attributed to Appellee.
{¶14} Although not requested, the magistrate issued findings of fact. While it is not clear the exact dollar amount of income the magistrate attributed to Appellee, the magistrate noted, in looking at the totality of the award and considering all sоurces of
{¶15} If a magistrate has not prepared findings of fact or has prepared findings of fact that are insufficient, the burden is on the party objecting to request findings of fact from the magistrate pursuant to Civ. R. 52 and Civ. R. 53(E)(2). Rush v. Schlagetter (April 15, 1997), Ross App. No. 96CA2215, unreported. By failing to request more specific findings of fact regarding what sources of income the magistrate considered, Appellant has waived any claim the magistrate did not сonsider all sources of income as recited in the findings of fact and the opinion of the trial judge overruling Appellant‘s objections.
{¶16} Appellant next argues the court erred in considering Appellant‘s ability to earn investment income of $111,500.00 from property she received in the parties’ property settlement, while not similarly attributing income to Appellee from property he received, but has chosen not to use to increase income, such as a condominium in Florida and certain liquid cash assets.
{¶17} Again, in the absence of a request for more specific findings of fact and conclusions of law, we cannot determine what the court considered regarding the
{¶18} The first assignment of error is overruled.
II
{¶19} In her second assignment of error, Appellant argues the court erred in including cash payments she received as part of her property settlement as income for purposes of spousal support.
{¶20} The magistrate found in Finding of Fact 9:
{¶21} “9. Kelly Hutta also testified. Her testimony also centered around each one of the factors in O.R.C. 3105.18. She testified regarding her budget, and indicated that that budget accurately reflected their standard of living in 2006. The Court order did not meet her needs. She related her testimony in the circumstances of the property settlement in that the numbers that were used did not reflect a lump sum award; but that most of the comes (sic) through on a periodic basis and will continue in that fashion. At
{¶22} On objection by Appellant, the trial court modified this finding of fact:
{¶23} “However, from the review of the testimony as cited by Defendant herself, it is clear from the record that the Magistrate properly considered, but failed to properly indicatе the wife‘s projected earnings (income) from her other property settlement provision (Tr Pg 195 line 10 et seq. and Tr pg 196 line 3 et seq). The investment income properly attributed to the wife totals an additional $111,500 per year to her plus the other categories of monthly cash flow as stated by the magistrate – adding in the approximate $10,000 per month to the mathematical ‘error.’ The Court finds that the finding should be modified as underlined to recite that she is receiving the $18,750
{¶24} The record does not support Appellant‘s claim the court used her property settlement payments as income in the calculation of spousal support. It is clear from the entry the court considered this property settlement payment for the purposes of analyzing the money available to meet Appellant‘s claimed monthly budgetary needs. We note such consideration is specifically recognized as a factor in determining whether spousal support is appropriate and reasonable in
{¶25} We cannot conclude the trial court considered Appellant‘s installment payments of marital property to be income to her for purposes of meeting her reasonable monthly еxpenses.
III
{¶27} In her third assignment of error, Appellant restates her argument the trial court did not properly consider the parties’ incomes from all sources. For the reasons stated in Assignments of Error One and Two, supra, this claim is without merit.
{¶28} Appellant next argues the trial court erred in awarding spousal support in the amount of $9,708.00 per month from April 4, 2006, through April 1, 2009, rather than increasing the amount to $12,000.00 retroactive to April, 2006. We disagree.
{¶29} In our first opinion, we found the trial сourt abused its discretion in the first spousal support award:
{¶30} “By refusing to consider the significant income that appellee derived from property obtained pursuant to the property settlement, we find that the trial court erred as a matter of law. We also find that the trial court abused its discretion under the totality of evidence presented, which included the parties’ standard of living, the long duration of the marriage, the disparate income and earning power of the parties, and appellant‘s responsibility for caring for the children.” Hutta, supra, ¶36.
{¶31} The magistrate set forth the following reasoning in support of prospective application of spousal support:
{¶32} “Because of the remand, and giving consideration of the parties each obeying the current order, there should be an adjustment, and the crafting of a creative order (less now-but longer) to attempt to eliminate any inequity to the рarties as a result of retroactivity and the required collection of any arrears through the CSEA. The easy solution would be to merely state the order and duration, and allow the parties to hash
{¶33} While we cannot determine what portion of the prospective award the trial court considered to be an adjustment for arrearages and what рortion, if any, was for interest on the arrearages, we find the magistrate‘s (trial court‘s) proffered reason for not making the increased spousal support order retroactive to April 2006, to be reasonable and does not constitute an abuse of discretion despite the parties’ stipulation April 2006 was the “error date.”
{¶34} Appellant next argues the court abused its discretion in awarding only $12,000 in spousal support where her budgetary needs to maintain the standard of living the parties established during the marriage were much higher. We disagree. The trial court, on remand, ordered that the original monthly spousal support order of $9,708 be in effect from April 4, 2006 through April 3, 2009, and made the new monthly spousal support of $12,000 effective from April 4, 2009 through April 3, 2017. The trial court did this in order “to attempt to eliminate any inequity to the parties as a result of retroactivity. . .” The new spousal support order is also thirty-six months longer than the previous order. We note the new spousal support order after remand serves to increase the overall award by approximately $570,000. We find the trial court did not abuse its discretion in determining the amount of spousal support.
IV
{¶35} In her final assignment of error, Appellant argues the court erred in limiting spousal support to a duration of 11 years. In our first opinion, this Court held:
{¶37} “Appellee argues that there is no statutory requirement for a trial court to make an order of spousal support indefinite in cases involving marriages of long duration, although a trial court may do so under reasonable circumstances.
{¶38} In Kunkle, 51 Ohio St.3d 64, 554 N.E.2d 83, the Ohio Supreme Court held, at paragraph one of the syllabus: ‘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 sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties’ rights and responsibilities.’
{¶39} “We agree with appellee‘s contention that Kunkle should not be read to mandate permanent spousal support in marriages of long duration. See also Sears v. Sears, Stark App. No. 2001CA00368, 2002-Ohio-4069, 2002 WL 1821954 (affirming
{¶40} “However, under the financial facts and circumstances of this case, and being mindful of the purpose of spousal support, we are persuaded that the trial court abused its discretion in limiting spousal support duration to eight years without any stated justificatiоn. At the time of divorce, appellant was age 49. Thus, spousal support would terminate at age 57. The evidence reflected an unlikelihood that appellant could develop a meaningful career outside the home, and she would be unable to access retirement accounts until age 59 1/2 or Social Security benefits at age 62. Thus, there exists a gap of at least one and a half years to five years when appellant would bе without support maintenance before she reaches retirement age. Appellee certainly has the resources and ability to provide continued support until appellant could achieve retirement age. The record simply does not support the trial court‘s determination that eight years was reasonable and nor does it provide insight to support the trial court‘s reasoning in this regard.” Hutta, supra, ¶37-41.
{¶41} On remand, the court continued spousal support for an additional three years, at which time Appellant would be 60 years of age and able to access retirement accounts. The magistrate found:
{¶42} “The Court of Appeals discussed the age of 59 1/2 and 62 as other termination dates. Kelly (sic) Hutta will be eligible for retirement distributions at approximately September 25, 2016, and eligible for Social Security in March, 2019.”
{¶43} The magistrate concluded that termination at the age of 59 1/2 was not apprоpriate, while neither is termination at the age of 62 or 65. Finding of Fact 24. The
{¶44} The fourth assignment of error is overruled.
{¶45} The judgmеnt of the Delaware County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, J. concurs
Edwards, P.J., dissents
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS
s/ W. Scott Gwin
HON. W. SCOTT GWIN
{¶46} I concur with the majority as to its analysis and disposition of the first, second and fourth assignments of error but respectfully dissent from its analysis and disposition of the third assignment of error.
{¶47} I find it was an abuse of discretion for the trial court not to make the increase in spousal support retroactive to April 4, 2006, the stipulated error date. It is clear that we previously determined that the monthly spousal support as оriginally ordered was too low. Therefore, any increase in that original spousal support should be retroactive to the date the original order began and interest should be calculated upon arrearages due. The trial court‘s rationale for not making the spousal support retroactive is that it is “not fair, appropriate, or reasonable” to “allow the parties to hash out payment arrangements.” I find that rationale nоn-persuasive. Courts make orders regarding arrearage payments all the time.
{¶48} I would remand this matter to the trial court to make the increase in spousal support retroactive to April 4, 2006, and to make orders regarding the payment of arrearages plus interest on that amount.
{¶49} It is also clear to me that the trial court did not intend to order spousal support to be $12,000.00 per month from April 4, 2006, because that amount was not made effective by the trial court until April 1, 2009. Therefore, on remand I would expect the trial court to calculate a figure somewhat less than $12,000.00 per month to be effective April 4, 2006.
{¶50} The majority found that the overall increase in spousal support after remand was approximately $570,000.00 and was not an abuse of discretion. I
{¶51} In our prior opinion, we found, “By refusing to consider the significant income appellee derived from property obtained pursuant to the property settlement, we find the trial court erred as a matter of law. We also find the triаl court abused its discretion under the totality of evidence presented which included the parties’ standard of living, the long duration of the marriage, the disparate income and earning power of the parties, and appellant‘s responsibility for caring for the children.” Hutta v. Hutta 177 Ohio App.3d 414, 2008-Ohio-3756, 894 N.E.2d 1282, at ¶ 36.
{¶52} Appellee‘s salary is $258,000.00 per year, and the initial spousal support of $9,708.00 per month was calculated using that amount. Appellee‘s net K-1 income per yеar is approximately $280,000.00 per year. The K-1 income does not include rental property income. I would find it to be an abuse of discretion for the trial court to increase spousal support by $1,667.00 per month when considering, at a minimum, additional income of appellee of $280,000.00 per year. Considering the additional factor of the tax consequences of spousal support (taxable to appellant, deductible to appellee), that $1,667.00 shrinks to approximately $1,000.00 per month
{¶53} The trial court is under no obligation to income-equalize the parties, and the appellant is receiving her property division very soon after the divorce. She didn‘t have to wait until the appellee sold his business or sold real estate. But even with those considerations in mind, based on the rеmand language of the prior appeal, I would find the trial court abused its discretion regarding the amount of spousal support.
s/ Julie A. Edwards
Judge Julie A. Edwards
Costs assessed to Appellant.
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS
s/ W. Scott Gwin
HON. W. SCOTT GWIN