{¶ 3} Following the last of these motions and hearings, the trial court issued a final QDRO, making its divorce decree a final appealable order. Appellant timely appealed from the trial court's judgment, asserting two assignments of error for review. For ease of analysis, Appellant's assignments of error have been rearranged.
{¶ 4} In her second assignment of error, Appellant contends that the trial court erred in calculating Appellee's income for the purposes of child support.1 Specifically, Appellant asserts that the trial court erred when it refused to include portions of Appellee's non-taxable income in the calculation of his gross income. This Court agrees.
{¶ 5} This Court will not disturb the trial court's determination regarding child support absent an abuse of discretion. Booth v. Booth (1989),
{¶ 6} R.C.
"[T]he total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable,
and includes income from salaries, wages, overtime pay, and bonuses to the extent described in division (D) of section
Further, while the Code permits deductions for ordinary and necessary business expenses, those expenses may only be deducted from self-generated income. See Thompson v. Thompson, 11th Dist. No. 2002-T-0108,
{¶ 7} Appellee was employed as a flight attendant and received a salary from the airline. As additional compensation for his employment, Appellee received a per diem payment of $1.75 per hour. It is undisputed that for the relevant time period Appellee received nearly $7,000 as a result of these per diem payments. Appellee has never asserted that he was self-employed, nor has he ever asserted any rationale which supports deducting his ordinary and necessary business expenses from his income. Under the plain language of the statute, whether or not Appellee's per diem wages were taxable is irrelevant to the determination of whether they are included in his gross income. Accordingly, the trial court abused its discretion in refusing to include the per diem monies that Appellee received from his employer in the calculation of his gross income.
Out-of-Pocket Health Care Expenses and Local Income TaxLiabilities
{¶ 8} Appellant additionally argues that the trial court erred when it refused to correct errors contained in the child support worksheet. Specifically, Appellant asserts that the undisputed evidence establishes that the improper numbers were used for Appellee's marginal out-of-pocket health care expenses for the parties' children and for her local income tax liability. In response, Appellee asserts that the trial court was projecting the parties' liabilities for 2005, so the numbers provided by Appellant for 2004 were not binding.
{¶ 9} This Court finds no support in the record for the assertions made by Appellee. At no point in time did the trial court discuss projecting the parties' liabilities. Further, assuming that these figures were projected, there is no evidence in the record to support such a projection. As such, the trial court was left with the undisputed evidence provided by Appellant that Appellee's out-of-pockets expenses totaled $327.00 and that Appellant's local income tax liability was $2,514.54. We find that by deviating from those amounts, without explanation or supporting evidence, the trial court abused its discretion.
Commencement Date of Child Support Modification
{¶ 10} Appellant asserts that the trial court erred when it refused to commence Appellee's amended support obligation on the date that the parties' eldest son became emancipated, July 8, 2004. In his brief, "Appellee admits that he stipulated for the commencement date of the amended support obligation to be July 8, 2004." In addition, the trial court had the authority to modify support retroactively to the date requested by the parties. SeeSprankle v. Sprankle (Mar. 25, 1998), 9th Dist. No. 2678-M, at *2-3. As the emancipation of the parties' eldest child provided a clear date on which Appellee's obligation changed, we find that the trial court abused its discretion in refusing to modify the obligation commencing on July 8, 2004.
Tax Dependency Exemption
{¶ 11} Appellant asserts that the trial court erred in granting the parties' each one of the children's tax dependency exemptions. We agree.
{¶ 12} R.C.
"Whenever a court issues, or whenever it modifies, reviews, or otherwise reconsiders a court child support order, it shall designate which parent may claim the children who are the subject of the court child support order as dependents for federal income tax purposes as set forth in section 151 of the "Internal Revenue Code of 1986,"
We begin by noting that the plain language of the statute does not require that the trial court state its reasons on the record for awarding the exemption. In support of the judgment, Appellee asserts that "[a]lthough not enunciated in its decision, it is clear that the Court did take into consideration the tax consequences to each of the parties * * * and the other factors set forth in [R.C.] 3119.82." Our review of the record, however, does not support such a conclusion.
{¶ 13} While R.C.
{¶ 14} In her first assignment of error, Appellant argues that the trial court erred in calculating her spousal support obligation. This Court agrees.
{¶ 15} An award of spousal support is within the broad discretion of the trial court. Blakemore,
{¶ 16} R.C.
"(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section
"(b) The relative earning abilities of the parties;
"(c) The ages and the physical, mental, and emotional conditions of the parties;
"(d) The retirement benefits of the parties;
"(e) The duration of the marriage;
"(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;
"(g) The standard of living of the parties established during the marriage;
"(h) The relative extent of education of the parties;
"(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
"(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;
"(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;
"(l) The tax consequences, for each party, of an award of spousal support;
"(m) The lost income production capacity of either party that resulted from that party's marital responsibilities;
"(n) Any other factor that the court expressly finds to be relevant and equitable."
While Appellant urges that many of the factors under R.C.
{¶ 17} R.C.
"(a) For a parent who is employed to full capacity, the gross income of the parent;
"(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent."
"Further, the question whether a parent is voluntarily (i.e.,
intentionally) unemployed or voluntarily underemployed is a question of fact for the trial court. Absent an abuse of discretion, that factual determination will not be disturbed on appeal." (Emphasis sic.) Rock v. Cabral (1993),
{¶ 18} In support of her claims in the trial court, Appellant elicited testimony that Appellee has a law degree and a law license. Appellant asserts that Appellee could perform legal services in the local community in addition to his current position and earn additional income. It is undisputed that Appellee is currently employed as flight attendant and earns between $50,000 and $60,000 per year. Appellant urges, however, that Appellee's schedule permits him to perform a second job, namely provide legal services. This Court can find no support for Appellant's assertion that Appellee should be required to secure a second occupation to increase his income. During the course of the marriage, Appellee never practiced law. We find no authority for the proposition that upon divorce he should be forced into a career he never embraced during the marriage. Accordingly, this Court cannot say that the trial court abused its discretion in finding that Appellee was not voluntarily underemployed.
{¶ 19} In addition, Appellant asserts that due to the fact that Appellee is capable of self-support that an award is unreasonable. This Court, however, has held that "need is not determinative of whether a trial court should award spousal support." Taylor v. Taylor (Dec. 23, 1998), 9th Dist. No. 18424, at *5. Further, there is no indication in the record that the trial court failed to consider the factors contained in R.C.
{¶ 20} The parties were married for nearly twenty years (R.C.
{¶ 21} As noted above, however, the trial court erred in computing Appellee's gross income. As this error effects the computation of Appellant's spousal support obligation, that obligation must be computed using the appropriate figures. Accordingly, to that extent, Appellant's first assignment of error is sustained.
{¶ 22} In her third assignment of error, Appellant contends that the trial court erred in finding that a portion of Appellee's contribution plan was separate property. This Court agrees.
{¶ 23} The distribution of assets in divorce proceedings is governed by R.C.
{¶ 24} This Court must affirm the trial court's determination as to the nature of the property as either marital or separate if such determination is supported by competent, credible evidence.Barkley v. Barkley (1997),
{¶ 25} Upon review, this Court finds that Appellee provided no documentation to support his claim of separate property. Indeed, Appellee's expert testified as follows:
Q. "Sir, is it your opinion, as an expert pension evaluator, that that $21,039 was [Appellee's] separate property as a result contributions * * * made prior to the marriage?
A. "It's our opinion this is a reasonable way, in lieu of documentation, to try to approximate. * * * As I said it is not an exact tracing[.]" (Emphasis added.)
On cross-examination, the expert continued as follows:
Q. "You also conceded though, it's not traceable?
A. "That's correct. We do not have yearly or monthly statements." Appellee's expert concluded that he utilized estimates and assumptions to "conservatively" determine Appellee's separate property interest in his defined contribution plan.
{¶ 26} On appeal, Appellee urges that the trial court did not err because his expert determined his separate property interest in a conservative manner. We find no support for such an argument.
{¶ 27} Pursuant to R.C.
{¶ 28} In performing his calculations, Appellee's expert relied upon reports primarily created in 1989 when Appellee withdrew funds from the account. The expert then assumed that Appellee had made contributions to the plan in the amount of 6% per year of Appellee's salary since the parties had married in 1984. While the plan caps the employer's contributions at 75% of 6% of Appellee's salary, the documentation relied upon by the expert does not cap Appellee's contributions at 6%. The plan itself states that "[Appellee] may contribute additional funds up to a maximum overall total of 10%." Accordingly, without documentation, the expert could not have determined the amount of Appellee's actual contributions to the plan after the parties were married. Absent evidence of Appellee's contributions, the expert's calculations were nothing more than guesswork. Accordingly, Appellee failed to meet his burden to trace his separate property. As no evidence was provided to support Appellee's claim, the trial court abused its discretion in awarding him a separate property interest. Appellant's third assignment of error is sustained.
{¶ 29} In her fifth assignment of error, Appellant asserts that the trial court erred in issuing a supplemental order to divide her pension benefit. Specifically, Appellant urges that the trial court improperly awarded Appellee an interest in the cost-of-living adjustments to her pension. We agree.
{¶ 30} R.C.
"The monthly benefit used under division (D)(2) of section
"(A) If the participant is receiving a monthly benefit, the monthly benefit shall be the benefit the participant is receiving at the time the decree of divorce or dissolution becomes final;
"(B) If the participant has applied for but is not yet receiving a monthly benefit, the monthly benefit shall be the benefit for which the participant is eligible;
"(C) If the participant has not applied for a benefit, the monthly benefit shall be the benefit calculated at the time the participant elects to take it."
In support of her argument, Appellant relies solely uponTobias v. Tobias, 2d Dist. No. 2003-CA-38,
{¶ 31} In Tobias, the Second District found that wife was not entitled to cost-of-living adjustments to husband's pension. In Tobias, wife was awarded a portion of husband's pension in the divorce decree dated October 17, 1997. Husband began receiving his monthly benefit in June of 2001 and received a cost-of-living adjustment the following year. Accordingly, R.C.
{¶ 32} In so holding, the court noted as follows:
"It is clear from reading this section that the ex-spouse's benefit is limited to the initial amount of the member's monthly benefit and to any COLA increase accrued prior to the date of the divorce. In other words, the new law does not provide for future COLA increases for ex-spouses of members." Id.
In the instant matter, Appellant has not yet applied for benefits. Accordingly, R.C.
{¶ 33} Accordingly, the statute requires that Appellee's benefit be calculated at the time Appellant elects to receive her benefit. When the trial court attempted to order that Appellee's benefit continue to be modified at a later date to include cost-of-living adjustments, it contravened the statute. Accordingly, we find that the trial court erred. Appellant's fifth assignment of error is sustained.
{¶ 34} In her fourth assignment of error, Appellant contends that the trial court erred when it failed to award her a right of survivorship in Appellant's defined benefit plan. In her final assignment of error, Appellant contends that the trial court erred when it failed to award her the value of the appreciation of the marital residence as separate property. In addition, Appellant asserts that the trial court erred in failing to assess half of the refinancing costs of the marital residence. This Court disagrees.
{¶ 35} In divorce proceedings, the trial court must divide marital property in an equitable manner. R.C.
{¶ 36} Appellant first argues that the trial court erred when it failed to award her a right of survivorship in Appellee's pension. This Court finds no error in the trial court's division of property.
{¶ 37} By statute, Appellee has no right of survivorship in Appellant's Ohio Public Employee's pension. In order to place the parties on equal footing, the trial court refused to grant Appellant such a right in Appellee's pension. Rather, the trial court ordered that both parties maintain insurance on the other party to compensate for not maintaining a right of survivorship. Appellant provided no evidence below that maintaining insurance in such a manner would be more costly for her than Appellee maintaining similar insurance. Rather, Appellant asserts that it is simply unfair to punish her because a statute eliminates Appellee's right of survivorship. As noted above, the trial court has broad discretion in fashioning an appropriate distribution of property. As the trial court's order placed the parties in substantially similar financial positions, we cannot say that the trial court abused its discretion.
{¶ 38} In support of her claim that she is entitled to $14,000 of separate property due to appreciation of the martial residence, Appellant relies upon her testimony that she utilized $40,000 of her separate property to build an addition to the home. Appellant asserts that the value of the home was $210,000 prior to the addition and was $264,000 after the addition. We find that Appellant's assertions lack merit.
{¶ 39} In her own testimony, Appellant stated that the parties spent between $60,000 and $70,000 remodeling the marital residence. Accordingly, from Appellant's testimony, there existed no appreciation on the monies invested by the parties. Rather, the value of the marital residence increased by less ($54,000) than the parties expended in remodeling ($60,000-$70,000). Accordingly, the trial court properly determined that Appellant was not entitled to any appreciation on her separate property contribution to the marital residence.
{¶ 40} Appellant further argues that the trial court abused its discretion when it failed to assess half the costs of the refinancing of the martial residence. We disagree.
{¶ 41} Early on in the course of the trial court proceedings, it was determined that Appellee was entitled to a portion of the equity in the marital residence. In order to provide Appellee with his portion, Appellant refinanced the home at a cost of nearly $8,000. Appellant has not argued that the overall division of property was inequitable. Rather, she focuses solely upon the failure of the trial court to divide the cost of refinancing. This Court cannot say that the trial court's actions were unreasonable, arbitrary or unconscionable.
{¶ 42} Appellee testified that he did not agree to the refinancing of the martial residence. Rather, he testified that the refinancing was solely Appellant's decision. In contrast, Appellant testified that the parties mutually agreed to refinance the home. It is undisputed, however, that the parties never attempted to allocate the costs of refinancing prior to Appellant voluntarily refinancing the home, and that the agreement drafted by the parties failed to reference dividing the cost of the refinancing.
{¶ 43} Upon review, we cannot say that the trial court abused its discretion in dividing the parties' property. The trial court was faced with the arduous task of dividing all of the parties' property in a highly contested matter. A review of the trial court's docket indicates that the parties contested nearly every item of property. As a result, the trial court held numerous hearings, received voluminous reports detailing the parties' finances, and issued lengthy orders in an attempt to equitably divide the parties' property. Reviewing the totality of the property division effectuated by the trial court, we cannot say that such a division is inequitable. Accordingly, Appellant's fourth and sixth assignments of error are overruled.
Judgment affirmed in part, reversed in part, and cause remanded.
The Court finds that 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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to both parties equally.
Slaby, P.J., Carr, J., Concur.