Riley v. RileyRiley v. Riley
DECISION AND JUDGMENT
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John F. Kirwan, for appellant.
Michael B. Jackson, for appellee.
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SHERCK, J.
{¶ 1} This is an appeal from a judgment issued by the Huron County Court of Common Pleas, Domestic Relations Division, regarding property division and spousal support in a divorce action. Because we conclude that the trial court erred in its allocation of separate property but did not abuse its discretion in denying spousal support, we reverse in part and affirm in part.
{¶ 2} Appellant, Victoria L. Riley, and appellee, Theodore J. Riley, were married in 1989. Prior to the marriage, appellant owned a house (“Bardshar property“). The
{¶ 3} In addition, appellant sought spousal support, asserting that she suffered from a medical disability which prevented her from working. The magistrate found that appellant failed to present medical documentation of her disability and also found her to be voluntarily underemployed. After the final divorce hearing before the magistrate, appellant allegedly received notice that her income claim for total disability had been approved. She requested that evidence of this disability income award be admitted to supplement the evidence presented at the hearing before the magistrate, but the trial court denied that request as well.
{¶ 4} Appellant filed objections regarding the magistrate‘s findings and rulings regarding the credit for her separate property and the denial of spousal support. The trial court granted the divorce, overruled the objections and adopted the magistrate‘s report.
{¶ 5} Appellant now appeals that judgment, arguing the following four assignments of error:
{¶ 7} “II. The trial court abused its discretion in failing to find that the $46,388.05 realized from the dale of plaintiff wife‘s separate property was used to pay the construction loan for the En Road property.
{¶ 8} “III. The trial court abused its discretion by denying a disabled 55 year old plaintiff wife spousal support after a [sic]18 year marriage to defendant husband who earns in excess of $39,000.00 per year and plaintiff wife‘s income is poverty level.
{¶ 9} “IV. The trial court abused its discretion when it denied a trial de novo to redetermine plaintiff wife‘s need for spousal support when she was found disabled, after the final divorce hearing by the magistrate, but before adopting the magistrate‘s findings by the court.”
I.
{¶ 10} We will address appellant‘s first and second assignments of error together. In her first assignment of error, appellant argues that the trial court erred in finding that she had failed to establish that the En Road property was not partially her separate property. In her second assignment of error, appellant asserts that the trial court erred in failing to find that proceeds from the sale of her separate property, $46,388.05, were used to fund the construction for the En Road property.
{¶ 11}
{¶ 12} Nevertheless, “[t]he commingling of separate property with other property of any type does not destroy the identity of the separate property * * * except when the separate property is not traceable.”
{¶ 13} In this case, appellee testified at the hearing before the magistrate that appellant owned the Bardshar Road property prior to the marriage. Therefore, there is no question that the Bardshar Road property was appellant‘s separate property. Appellee testified that there were maintenance problems with the Bardshar property. He said that
{¶ 14} On September 28, 2001, the parties entered into an agreement for construction on the En Road lot property, which had been jointly purchased for $18,000 by the parties in 1998. The amount of the cash deposited for the new construction was $47,761.17. Although at first appellee said he was unsure of the amount, he later testified that the proceeds from the sale of the Bardshar Road property were used to secure the construction loan on the En Road lot. He also acknowledged that he had brought no real estate, property or other assets into the marriage.
{¶ 15} Appellant testified that, prior to the marriage, she owned the Bardshar property, purchased in 1983. She also stated that in 1998, the parties refinanced the Bardshar property and used $18,000 from that loan to purchase the En Road property. She further testified that the Bardshar property was then sold in 2001, and the net proceeds from the sale of that property, $46,388.05, were applied to the house construction on the En Road property. During the magistrate‘s hearing, appellant presented dated documents showing the sale of the Bardshar residence and the construction loan documents for the En Road home. She did not present any paperwork that showed where the Bardshar sale proceeds were deposited during the three months between the July sale and the September loan. Appellant also testified that, prior to the
{¶ 16} In this case, the trial court erred in adopting the magistrate‘s finding that the proceeds from the Bardshar road property sale were not traceable as appellant‘s separate property. Appellee did not dispute and even agreed that the proceeds from the sale were applied to the financing of the En Road house construction. Moreover, nothing in the record suggests that the $47,761 deposit on the construction loan did not include the $46,388 from the sale of appellant‘s separate property. Appellee acknowledged that he had no other funds or assets from which the construction loan deposit could have been drawn.
{¶ 17} Contrary to the magistrate‘s report, the inference that the proceeds from the sale of one property were applied to the construction loan just three months later, does not require a “leap of faith” or any other speculation. Rather, it is based on logic, common sense, and the parties’ own testimony which provided the necessary verification. Since the parties agreed on the ultimate use and destination of the separate property proceeds, written documentation of the temporary deposit of the Bardshar proceeds was unnecessary to trace those funds. Consequently, by a preponderance of the evidence, appellant adequately traced the Bardshar Road separate property funds to the En Road property. Therefore, we conclude that the trial court erred in failing to credit appellant with the $46,388.05 as the value of her separate property.
II.
{¶ 19} We will next address appellant‘s fourth assignment of error. In her fourth assignment of error, appellant claims that the trial court erred in denying her request to submit new or additional evidence regarding her ability to be employed after the final divorce hearing.
{¶ 20}
{¶ 21} The question in this case is whether the trial court had to admit the evidence because it could not have been produced with reasonable diligence or whether the decision not to admit this evidence falls within the trial court‘s broad discretion.
{¶ 22} The record indicates, however, that the issue of appellant‘s disability was presented to the magistrate. Although the final determination of her disability claim was not available at the time of the hearing, appellant had notice but failed to present medical records or documentation of her disability income claim in order to establish a need for spousal support. Moreover, appellant could have reserved the right to file the disability determination with the court or could have asked for a continuance of the hearing until that determination was made. Therefore, we conclude that the denial of the admission into evidence of the disability claim determination was not an abuse of the trial court‘s discretion.
{¶ 23} Accordingly, appellant‘s fourth assignment of error is not well-taken.
III.
{¶ 24} In her third assignment of error, appellant argues that the trial court erred in denying her request for spousal support.
{¶ 25} A trial court has broad discretion in determining whether to award spousal support. See Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 24. The trial court also has discretion in determining the amount of a spousal support award. Havanec v. Havanec, 10th Dist. No. 08AP-465, 2008-Ohio-6966, ¶ 23, citing Vanderpool v. Vanderpool (1997), 118 Ohio App.3d 876, 879. An appellate court may not alter a support award
{¶ 26}
{¶ 27} “(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section
{¶ 28} “(b) The relative earning abilities of the parties;
{¶ 29} “(c) The ages and the physical, mental, and emotional conditions of the parties;
{¶ 30} “(d) The retirement benefits of the parties;
{¶ 31} “(e) The duration of the marriage;
{¶ 32} “(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;
{¶ 33} “(g) The standard of living of the parties established during the marriage;
{¶ 34} “(h) The relative extent of education of the parties;
{¶ 36} “(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;
{¶ 37} “(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;
{¶ 38} “(l) The tax consequences, for each party, of an award of spousal support;
{¶ 39} “(m) The lost income production capacity of either party that resulted from that party‘s marital responsibilities;
{¶ 40} “(n) Any other factor that the court expressly finds to be relevant and equitable.”
{¶ 41} The trial court need not comment on each factor, but the record must demonstrate that “the court considered each factor in making its spousal support award.” Kreilick v. Kreilick, 161 Ohio App.3d 682, 2005-Ohio-3041, ¶ 24.
{¶ 42} Our review of the record reveals that although appellant requested spousal support of $400 per month based upon her disability and the disparity in incomes, she failed to submit any medical records in support of her claim. Although we agree that the parties’ incomes, at the time of the hearing, appeared to be unequal, the trial court adopted
{¶ 43} And, although appellant alleged that she recently became disabled, the record indicates that she has been employed outside the home for most of the duration of the marriage and no evidence was offered to show that her alleged disability was permanent. Consequently, the issue of her disability becomes one of evidentiary proof and credibility, based solely on appellant‘s testimony. Therefore, we cannot say that the trial court abused its discretion in denying appellant‘s request for spousal support.
{¶ 44} Accordingly, appellant‘s third assignment of error is not well-taken.
{¶ 45} The judgment of the Huron County Court of Common Pleas, Domestic Relations Division, is reversed as to the credit for the value of the separate property, affirmed as to the denial of spousal support, and remanded for proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED, IN PART, AND REVERSED, IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
James R. Sherck, J. CONCUR.
JUDGE
JUDGE
JUDGE
Judge James R. Sherck, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
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.