Seaburn v. SeaburnSeaburn v. Seaburn
- Reporters:
- Before:
- Boggins, Hoffman, Farmer
OPINION
{¶ 1} Aрpellant Jeffrey M. Seaburn appeals the October 28, 2004, Order overruling his Objections to the Magistrate‘s Decision.
{¶ 2} Appellee is Diana L. Seaburn.
STATEMENT OF THE FACTS AND CASE
{¶ 3} Jeffrey M. Seaburn and Diana L. Seaburn were married on October 19, 1974. The parties had three children, all of whom are emancipated.
{¶ 4} During the parties’ thirty year marriage, Appellant has been employed at Ford Motor Company as an electrician. Appellant attended school and completed four years of an apprenticeship to become an electrician. His income in 2003 was $87,000. He is currently laid-off but is guaranteed a forty-hour income, approximately $3,600 per month, because he is a member of the Guarаnteed Employment Numbers Program (GEN). Appellant‘s pension through Ford is currently valued at $55,200.84. His current social security benefit is valued at $182,249.90.
{¶ 5} Appellee has not worked full-time for at least twenty-three (23) years. Appellee cоmpleted high school but has had no further training or education. During the marriage, Appellee has had some part-time jobs consisting of cleaning houses and working for a landscaping company. Appellee is 48 yeаrs old and has no independent retirement benefits.
{¶ 6} The parties agree on the value of $130,000 for the marital residence.
{¶ 7} On December 11, 2003, Appellant filed a Complaint for Divorce in the Stark County Court of Common Pleas, Domestic Relations Division. The issues at trial were the division of the assets and spousal support.
{¶ 8} On August 17, 2004, the Magistrate issued her decision ordering Appellant to pay spousal support in the amount of $2,867 per month for ten yeаrs and nine months.
{¶ 9} Appellant filed an objection to the Magistrate‘s Decision which was heard before the trial court.
{¶ 10} By Judgment Entry dated October 28, 2004, the trial court overruled Appellant‘s objections and adopted the Magistrate‘s Decision.
{¶ 11} Appellant now appeals, assigning the following as error:
ASSIGNMENTS OF ERROR
{¶ 12} “I. The trial court erred to the prejudice of plaintiff-appellant by failing to impute income to defendant-appellee duе to her voluntary underemployment.
{¶ 13} “II. The trial court erred to the prejudice of plaintiff-appellant and abused its discretion in its spousal support award to appellee for 129 months at $2,867.00 per month, thereby giving appellee 62% of appellant‘s income.
{¶ 14} “III. The trial court erred to the prejudice of plaintiff-appellant and abused its discretion by failing to determine a de facto date of the termination of the marriаge, and by failing to give him credit for payments made during the parties’ lengthy separation, which resulted in an inequitable property distribution of the parties’ assets and in an inequitable award of spousal support.”
I.
{¶ 15} In his first assignment of еrror, Appellant argues that in determining spousal support, the trial court erred in failing to impute income to Appellee due to voluntary underemployment. We disagree.
{¶ 16} A trial court‘s decision concerning spоusal support may only be altered if it constitutes an abuse of discretion. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E.2d 83. An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconsciоnable. Blakemorev. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶ 17}
{¶ 18} “(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section
{¶ 19} “(b) The relative earning abilities of the parties;
{¶ 20} “(c) The ages and the physical, mental, and emotional conditions of the parties;
{¶ 21} “(d) The retirement benefits of the parties;
{¶ 22} “(e) The duration of the marriage;
{¶ 23} “(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;
{¶ 24} “(g) The standard of living of the parties established during the marriage;
{¶ 25} “(h) The relative extent of education of the parties;
{¶ 26} “(I) The relative assets and liabilities of the parties, including but not limited to any court-ordered paymеnts by the parties;
{¶ 27} “(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;
{¶ 28} “(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;
{¶ 29} “(l) The tax consequences, for each party, of an award of spousal support;
{¶ 30} “(m) The lost income production capacity of either party that resulted from that party‘s marital responsibilities;
{¶ 31} “(n) Any other factor that the court expressly finds to be relevant and equitable. ”
{¶ 32} Ohio courts have determined that earning ability involves “both the amount of money one is capable of earning by his or her qualifications, as well as his or her ability to obtain such employment.”Haniger v. Haniger (1982), 8 Ohio App.3d 286, 288, 456 N.E.2d 1228. When considering the relative earning abilities of the parties in cоnnection with an award of spousal support, Ohio courts do not restrict their inquiry to the amount of money actually earned, but may also hold a person accountable for the amount of money a “person could have earned if he made the effort.” Beekman v. Beekman (August 15, 1991), Franklin App. No. 90AP-780, 6, unreported.
{¶ 33} Because
{¶ 34} In the case at bar, the trial court determined that Appellee-Wife did not substantially work outside the home during the thirty-year marriage of the parties, that she was occupied as a homemaker and raised the parties’ three children during that time, and further thаt she had no post high school education or training. The court further considered that Appellee-Wife has no health benefits except those provided through her husband.
{¶ 35} Based on the foregoing, we find that the court did nоt err in not imputing any income to Appellee for purposes of spousal support.
{¶ 36} Appellant‘s first assignment of error is overruled.
II.
{¶ 37} In his second assignment of error, Appellant contends the amount and duration of spousal support was an abuse discretiоn. We disagree.
{¶ 38} Again, a trial court‘s decision concerning spousal support may only be altered if it constitutes an abuse of discretion. Kunkle v.Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E.2d 83.
{¶ 39} A trial court‘s decision not to acknowledge all evidence relative to each and every factor listed in
{¶ 40} In the case sub judice, as stated in Assignment of Error I, the court found that the marriage was one of long duration, thirty years, that Appellee had no education, training or skills. The court further considered Appellant‘s work history, his high income, considerable training and retirement benefits.
{¶ 41} Again, we find no abuse of discretion by the trial court in its determination as to the amount and the duration of spousal support.
{¶ 42} Appellant‘s second assignment of error is overruled.
III.
{¶ 43} In his third assignment of error, Appellant argues that the trial court abused its discretion by failing to determine a de facto date of the termination of the marriage and by failing to credit him with payments made during the parties’ separation. We disagree.
{¶ 44}
{¶ 45} Appellant‘s failure to object waived this issue for purposes of appeal. “An appellate court will not consider any error which a party complaining of a trial court‘s judgment could havе called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.” Lefort v. Century21-Maitland Realty Co., 32 Ohio St.3d at 123, 512 N.E.2d at 643, citing Stores Realty Co. v. Cleveland, 41 Ohio St.2d at 41, 322 N.E.2d at 629.
{¶ 46} However, we note that authority exists in Ohio law for the proposition thаt appellant‘s failure to object to the magistrate‘s decision on this issue does not bar appellate review of “plain error.” Inre Lemon, Stark App. No. 2002 CA 00098, 2002-Ohio-6263 (citing R.G. RealEstate Holding, Inc. v. Wagner (April 24, 1998), Montgomery App. No. 16737; Timbercreek Village Apts. v. Myles (May 28, 1999), Montgomery App. No. 17422; Tormaschy v. Weiss (July 6, 2000), Richland App. No. 00CA01). The doctrine of plain error is limited to exceptionally rare casеs in which the error, left unobjected to at the trial court, “rises to the level of challenging the legitimacy of the underlying judicial process itself.” See Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 1997-Ohio-401, 679 N.E.2d 1099.
{¶ 47} Although appellant has not raised the issue of plain error in his this assignment оf error, this court will review same under the plain error standard.
{¶ 48}
{¶ 49} As this Court noted in Corbett v. Corbett (June 1, 1999), Coshocton App. Nos. 98-CA-16 and 98-CA-19, unreported, when the termination of the marriage is nоt a joint decision, and one party holds on to the thought that the marriage should not end, there is good cause to use the date of the final hearing as the termination date.
{¶ 50} Appellant argues that the Magistrate should hаve found that the marriage terminated when he moved out of the marital residence and in with his girlfriend.
{¶ 51} While, this may be, evidence was also presented that while Appellant may have lived with his girlfriend for six years, he did in fact move baсk into the marital residence, in an attempt at reconciliation, for approximately two years between the time he originally moved out and the date of the trial in this matter.
{¶ 52} Based on the above, we find that the triаl court did not abuse its discretion in terminating the marriage as of the date of final divorce hearing. Appellant‘s third assignment of error is overruled.
{¶ 53} This cause is affirmed.
Boggins, P.J., Hoffman, J. and Farmer, J. concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Comm