Ostry v. McCarthyOstry v. McCarthy
Dated: June 30, 2021
CARR, Presiding Judge.
{¶1} Defendant-Appellant Paula McCarthy appeals from the judgment of the Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} Ms. McCarthy and Plaintiff-Appellee Ronald Ostry married January 22, 1983. The parties had no minor children at the time of the proceedings. In July 2018, Mr. Ostry filed a complaint for divorce. Ms. McCarthy filed an answer and counterclaim.
{¶3} The matter proceeded to a hearing in July 2019 before the trial court. Relevant to this appeal, the parties contested whether $42,000 provided by Mr. Ostry‘s mother in 2004 was Mr. Ostry‘s separate property. That money was used as a down payment to purchase the couple‘s home on Sun Valley Drive. In addition, the parties differed as to how much spousal support Ms. McCarthy should receive.
{¶5} Ms. McCarthy has appealed, raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION WHEN FINDING THAT $42,000 USED TO PURCHASE THE MARITAL PROPERTY WAS APPELLEE‘S SEPARATE PROPERTY AS THE TRIAL COURT‘S FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION WHEN FINDING THAT $42,000 USED TO PURCHASE THE MARITAL PROPERTY WAS TRACED AS APPELLEE‘S SEPARATE PROPERTY WITHOUT DOCUMENTARY EVIDENCE AS THE TRIAL COURT‘S FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]
{¶6} As Ms. McCarthy combined her discussion of her first two assignments of error in her brief, so do we. Ms. McCarthy argues in her first assignment of error that the trial court‘s finding that the $42,000 from Mr. Ostry‘s mother was Mr. Ostry‘s separate property is not supported by the weight of the evidence. Specifically, she maintains that the $42,000 was marital property and that the record does not support that Mr. Ostry‘s mother‘s donative intent was to give the money only to Mr. Ostry. Ms. McCarthy asserts in her second assignment of error that Mr. Ostry failed to trace the property as he did not provide any documentary evidence in support of the claim.
{¶8}
{¶9} Here, the trial court concluded that Mr. Ostry‘s mother gifted $42,000 only to Mr. Ostry in 2004, and that, therefore, the money represented a separate property interest. After reviewing the record, we conclude that Ms. McCarthy has not demonstrated that that determination is against the weight of the evidence.
{¶10} In the course of the proceedings, the money from Mr. Ostry‘s mother was sometimes described as a pre-inheritance, sometimes as an inheritance, and sometimes as a gift. First, we note that in his affidavit of property, which was admitted as an exhibit, Mr. Ostry listed as his separate property an inheritance of $42,000 from his mother. Ms. McCarthy also submitted an affidavit of property as an exhibit, wherein she also listed in the separate property category a $40,000 inheritance from Mr. Ostry‘s mother. There is a notation that implies that the money was used as a down payment on a house. It is unclear from the exhibit whether Ms. McCarthy was asserting that the inheritance should be characterized as her separate property or Mr. Ostry‘s. Either way, the exhibit does evidence that, at least when she completed the form, Ms. McCarthy believed that the money from Mr. Ostry‘s mother was separate property.
{¶11} In addition, to support his separate property claim, Mr. Ostry presented his affidavit and the affidavit of his mother. His mother‘s affidavit states as follows:
- I, Rita D. Ostry, (“Affiant“) am the mother of three children: Edward S. Ostry; Ronald J. Ostry; and Randi M. Ostry;
- In 2004, I entered into a Purchase Agreement and sold my residence * * * to move in with my daughter;
From the proceeds of the sale of my Residence, and because I was moving in with my daughter, I gave to each of my children a pre-inheritance of $42,000.00 each for their use in purchasing new homes; - My son, Ronald Ostry, together with his wife, Paula B. Ostry, used this pre-inheritance amount towards their purchase of a new home located [on Sun Valley Dr.]; they could not have afforded this home without my bequest.
The affidavit was dated subsequent to Mr. Ostry‘s filing for divorce and was notarized by his sister, who is an attorney.
{¶12} Mr. Ostry also submitted a similar affidavit that was also admitted as an exhibit. It provides in relevant part:
- From the proceeds of the sale of my Mother‘s Residence, and because she was moving in with my sister, my Mother gave me and my sister and brother, Edward S. Ostry, a pre-inheritance of $42,000.00 each for our use in purchasing new homes in early 2004;
- I, together with my estranged wife, Paula B. Ostry * * * used this pre-inheritance amount in June 2004 towards our purchase of a new home located [on Sun Valley Dr.]
It is dated the same date as Mr. Ostry‘s mother‘s affidavit.
{¶13} Moreover, Mr. Ostry presented the testimony of his mother, brother, and himself in support of his assertion that the $42,000 from his mother was his separate property. Mr. Ostry‘s mother testified that, in 2004, she gave $42,000 to her son. She gave it to Mr. Ostry in approximately $9,000 increments to avoid tax consequences. Contrary to her affidavit, she asserted at trial that she did not know how Mr. Ostry used the money. The checks were only made out to Mr. Ostry and Mr. Ostry‘s mother did not say anything to Ms. McCarthy about the money. However, Mr. Ostry‘s mother no longer had copies of the checks. Mr. Ostry‘s mother gave the same amount to her two other children, Mr. Ostry‘s sister and brother. Mr. Ostry‘s mother testified that she was giving the money to Mr. Ostry to do whatever he wanted to do with it. She gifted the money to her three children because she sold her home to move in with Mr. Ostry‘s sister and
{¶14} Mr. Ostry‘s brother testified to receiving $40,000 from Mr. Ostry‘s mother in approximately $9,000 increments. At the time Mr. Ostry‘s brother was not married and the checks were just made out to him. He confirmed that Mr. Ostry‘s mother gave money to all three children after she sold her house as a gift/pre-inheritance.
{¶15} Mr. Ostry testified that his mother gave him $42,000 and that that money, along with money from the sale of a previous house, was used for the down payment on the marital home on Sun Valley Drive. He confirmed that his mother wrote the checks to him alone and that there were several of them. During the divorce proceedings, Mr. Ostry was living in a home that the couple previously rented on Harcourt Drive.
{¶16} In her testimony, Ms. McCarthy testified that she listed the $40,000 from Mr. Ostry‘s mother, which she labeled an inheritance, in her affidavit of property because it was from his mother for both Ms. McCarthy and Mr. Ostry. Ms. McCarthy initially claimed that she copied down what Mr. Ostry put in his affidavit; however, during cross-examination, she acknowledged that she put $40,000, whereas Mr. Ostry listed $42,000 and some bedroom furniture as separate property.
{¶17} After considering all the evidence presented, we cannot say that Ms. McCarthy demonstrated that the trial court‘s finding that the $42,000 from Mr. Ostry‘s mother was Mr. Ostry‘s separate property is against the manifest weight of the evidence. Ms. McCarthy focuses on the paragraph of the affidavit that indicates that the money was used by both Mr. Ostry and Ms. McCarthy to purchase a house, which they could not afford to purchase without that money. However, this ignores the prior paragraph of the affidavit which specifically states that Mr. Ostry‘s
{¶18} Overall, we cannot say that Ms. McCarthy met her burden on appeal to demonstrate that the trial court‘s finding that the money from Mr. Ostry‘s mother was Mr. Ostry‘s separate property is against the weight of the evidence. Ms. McCarthy‘s first two assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION WHEN IT IMPUTED INCOME TO WIFE WITHOUT AN OCCUPATIONAL WAGE EVALUATION AND ORDERED HUSBAND TO PAY WIFE $1,246.33 IN SPOUSAL SUPPORT WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶19} Ms. McCarthy argues in her third assignment of error that the trial court abused its discretion in imputing income to her and ordering Mr. Ostry to pay $1,246.33 in spousal support. Ms. McCarthy maintains that the trial court erred in conducting “its own appraisal of [her] future
{¶20} “As a general rule, a spousal support award is reviewed for an abuse of discretion.” Lee v. Lee, 9th Dist. Lorain No. 17CA0011235, 2019-Ohio-61, ¶ 8. However, challenges to factual findings can necessitate that the Court evaluate the weight of the evidence. See id.
{¶21} “A trial court must consider the factors set forth in
{¶22} Here, the trial court set forth an analysis of each of the factors in its judgment entry. Thereafter, the trial court awarded Ms. McCarthy $1,246.33 per month for an indefinite duration due to the length of the marriage. The award would terminate upon the death of either party or the
{¶23} Ms. McCarthy does not challenge the income that the trial court established for Mr. Ostry. Instead, she maintains that the trial court abused its discretion in imputing her with $17,784 annually, which was equivalent to minimum wage. While we agree that the trial court‘s choice of the word “imputed” is unfortunate, we nonetheless cannot say that Ms. McCarthy has demonstrated that the trial court committed reversible error in concluding her income approximated minimum wage. See Collins at ¶ 19.
{¶24} Both parties were around 60 years old at the time of the hearings. The trial court determined that Mr. Ostry‘s income, which is also listed as “imputed” was $57,518. This amount has not been challenged on appeal. It included overtime that Mr. Ostry testified that he did in order to keep up with all of the expenses, including spousal support, which he began paying in December 2018. Five months prior to the hearing, Mr. Ostry had bilateral partial knee replacements. This surgery kept him home from work for five weeks. Following his surgery, Mr. Ostry was able to switch to a sit-down job, building airplane brake valves. He acknowledged that he had the ability to perform different jobs, had a retirement account, paid vacation, and medical insurance available to him.
{¶25} In addition, there was evidence presented that Mr. Ostry had a deck cleaning business on the side, which he did not include in his affidavit of income and expenses. He indicated that he could not kneel anymore and was not doing it much at the time of trial. Mr. Ostry testified that he typically made anywhere from $1,000 to a few thousand dollars a year doing the deck work.
{¶26} At the time of the hearing, Mr. Ostry was living in the parties’ former rental property and Ms. McCarthy was living in the marital residence on Sun Valley Drive. Mr. Ostry
{¶27} Early in the marriage, Ms. McCarthy worked as a dental assistant for 6 to 8 years. After her daughter was born, because Ms. McCarthy is agoraphobic, she stopped working outside of the home. She began babysitting in the home to supplement her income in 1987 or 1988. As recently as December 2018, Ms. McCarthy testified she was babysitting five to seven children and earning between $500 to $700 per week. Despite this, Ms. Ostry listed her income on her affidavit of income and expenses as zero. Worsening medical issues caused Ms. McCarthy to decrease the number of children she was babysitting. Ms. McCarthy testified that she was on medication for anxiety, depression, and high blood pressure among others. Ms. McCarthy had also been in need of a double knee replacement for several years but has not been able to get one due to her babysitting and her A1c levels. Her A1c levels were related to her diabetes, a condition which she has had for 15 years. Ms. McCarthy maintained that she could not work as she could not stand for long periods and had a hard time walking. She stated that she has 80 percent neuropathy in her feet and could not feel her toes. While Ms. McCarthy maintained that she had thousands of dollars in medical bills, a patient ledger that she submitted as an exhibit indicated that her total balance due was less than $200. After the divorce, Ms. McCarthy would also have to supply her own medical insurance, which she estimated the cost to be from $565 to 709 a month.
{¶28} The last time Ms. McCarthy babysat five children was in March or April 2019. At the time of trial, she testified that she was earning $120 a week from one child, which would
{¶29} While Ms. McCarthy was asked to supply four years of bank statements; instead, she only provided a few months of statements from late 2018 into 2019. The records evidence Ms. McCarthy‘s January, February, and March 2019 statements demonstrated thousands of dollars in deposits that she could not fully explain; however, she did admit that at least some of the money came from babysitting. While Ms. McCarthy maintained that all of the money did not come from babysitting, she did not offer a source as to where it came from. Irrespective, the deposits, aside from spousal support totaled over $2,000 per month for the first three months of the year.
{¶30} After a thorough review of the record, we cannot say that Ms. McCarthy demonstrated that the trial court‘s decision amounts to an abuse of discretion, or that it is against the weight of the evidence. The trial court noted that it did not find Ms. McCarthy‘s testimony credible in several respects. Many of the items the trial court pointed to related to issues concerning Ms. McCarthy‘s income. Here, there was evidence in the record that during 2019 Ms. McCarthy was somehow earning over $2,000 per month. Assuming that were to continue through the year, Ms. McCarthy would make $24,000 a year. While Ms. McCarthy maintained that she could no longer babysit multiple children at a time, the trial court was not required to find her testimony credible. Notably, Ms. McCarthy had previously babysat five to seven children all while suffering from the same health conditions she had at the time of trial. Thus, we cannot say that the trial court‘s conclusion that Ms. McCarthy‘s income for spousal support purposes was $17,784 annually amounts to reversible error. If there is any error, it appears to be an error in her favor.
{¶31} The trial court provided a detailed analysis of the factors set forth in
{¶32} Ms. McCarthy‘s third assignment of error is overruled.
III.
{¶33} Ms. McCarthy‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
CALLAHAN, J. SUTTON, J. CONCUR.
APPEARANCES:
NICHOLAS KLYMENKO, Attorney at Law, for Appellant.
BRENDON J. KOHRS, Attorney at Law, for Appellee.