Marsh v. MarshMarsh v. Marsh
Decided: October 15, 2010
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Howard C. Whitcomb, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Raymond P. Marsh, appellant, appeals a November 13, 2009 final judgment of the Ottawa County Court of Common Pleas in an action for divorce brought by appellee, Anna Schmidt Marsh. Anna and Raymond were married on April 5, 2003. The judgment granted them a divorce, ordered distribution of their separate property and division of marital property, and also ordered Raymond to pay Anna spousal support in the amount of $1,700 each month for a period of two years.
{¶ 3} “I. The trial court erred in awarding the plaintiff-appellee an amount and duration of spousal support that was not necessary, reasonable and appropriate.
{¶ 4} “II. The trial court abused its discretion in this case by awarding spousal support to the plaintiff-appellee because the plaintiff-appellee failed to present sufficient evidence to support an award of spousal support and/or it was against the weight of the evidence to make such an award.”
{¶ 5} An appellate court reviews a trial court judgment awarding spousal support under an abuse of discretion standard. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67; Bowen v. Bowen (1999), 132 Ohio App.3d 616, 626. The term abuse of discretion “implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 6} “Even though a trial court has broad discretion in awarding spousal support, its determination of whether spousal support is ‘appropriate and reasonable’ the nature, amount, duration and terms of payment of spousal support is controlled by the factors in
{¶ 8}
{¶ 9} “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:
{¶ 10} “(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under
{¶ 11} “(b) The relative earning abilities of the parties;
{¶ 12} “(c) The ages and the physical, mental, and emotional conditions of the parties;
{¶ 13} “(d) The retirement benefits of the parties;
{¶ 14} “(e) The duration of the marriage;
{¶ 15} “(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;
{¶ 17} “(h) The relative extent of education of the parties;
{¶ 18} “(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
{¶ 19} “(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;
{¶ 20} “(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;
{¶ 21} “(l) The tax consequences, for each party, of an award of spousal support;
{¶ 22} “(m) The lost income production capacity of either party that resulted from that party‘s marital responsibilities;
{¶ 23} “(n) Any other factor that the court expressly finds to be relevant and equitable.”
{¶ 24} The trial court identified the factors it considered in its analysis in making the spousal support award. The court considered the disparity of incomes between the parties.
{¶ 25} As the final divorce decree, the November 13, 2009 judgment provided for a division of marital property and included listings of assets and liabilities of the parties that were considered in making that determination. However, the court neither listed
{¶ 26} Appellant argues that he is unable to pay the $1,700 per month award and that the judgment is not based upon a consideration of his ability to pay. Appellant testified that he has two minor children (not of the marriage) and is obligated to pay $111.28 a week for the child support and to provide the children with medical insurance. The judgment in this case also requires appellant to pay a total of $12,402.95 as his share of marital debt.
{¶ 27} Although appellant acquired ownership of real property on Chase Street before the marriage and was awarded the property as his separate property under the November 13, 2009 judgment, appellant testified that he holds no equity interest in the property. The property is in foreclosure proceedings concerning payments due under a
{¶ 28} Appellant pays a monthly rent for his residence. He testified at the final hearing as to living expenses and argues that the difference between his monthly disposable income and monthly expenses before making payments towards the marital debt is $313. He argues that under the circumstances the obligation to pay $1,700 a month in spousal support is neither reasonable nor appropriate.
{¶ 29}
{¶ 30} Consideration of the
{¶ 31} Our ruling on Assignment of Error No. I renders Assignment of Error No. II moot.
{¶ 32} We conclude that justice was not afforded the party complaining and reverse the judgment of the trial court to the extent the judgment awarded spousal support. We remand this case to the Ottawa County Court of Common Pleas for further proceedings consistent with this decision for determination of whether to award spousal support and, should spousal support be awarded, for determination of the nature, amount, terms of payment and duration of spousal support. Appellee is ordered to pay costs of this appeal pursuant to
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
Mark L. Pietrykowski, J.
Keila D. Cosme, J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.