{¶ 2} Chadwick Zollar ("Husband") and Kathy Zollar ("Wife") were married on *2 December 31, 1987. The couple has one child, Kristen ("Daughter"), born October 1, 1990.
{¶ 3} In November 2005, Husband was temporarily transferred to his employer's office in Brazil. In April 2006, Husband was joined in Brazil by his wife and teenage daughter. On March 29, 2007, Wife, after returning to Butler County and upon learning of her husband's extramarital affair, filed for divorce. Daughter remained in Brazil with her father in order to finish her junior year of high school.
{¶ 4} On February 7, 2008, after holding a hearing on divorce, property division, spousal support, and child support, the trial court classified and divided the property, and ordered Husband to pay Wife $6,666.67 per month in spousal support. However, the trial court did not order either party to pay child support because, as the trial court found, it was unjust, inappropriate, and not in the best interest of the child.
{¶ 5} Husband now appeals the trial court's classification of the 401K plan as marital property and the amount of spousal and child support ordered, raising four assignments of error. For ease of discussion, Husband's assignments of error will be addressed out of order.
{¶ 6} Assignment of Error No. 1:
{¶ 7} "THE TRIAL COURT ERRED IN FAILING TO AWARD THE DEFENDANT HIS SEPARATE NON-MARITAL PORTION OF HIS 401K PLAN."
{¶ 8} Property division in a divorce proceeding is a two-step process that is subject to two different standards of review. Lynch v.Lynch, Warren App. No. CA2008-02-028,
{¶ 9} Marital property includes personal property that is currently owned by either or both of the spouses and that was acquired by either or both of the spouses during the marriage. R.C.
{¶ 10} The trial court's classification of property as marital or separate must be supported by the manifest weight of the evidence.Kevdzija v. Kevdzija,
{¶ 11} Further, after labeling the assets as separate or marital property, "the court shall disburse a spouse's separate property to that spouse" and divide the marital property equally, unless the court finds an equal division would be inequitable. R.C.
{¶ 12} Appellant, in his first assignment of error, argues that the trial court erred by classifying the entire value of the 401K savings plan as marital property when he provided "uncontroverted" evidence regarding the value of the separate nonmarital portion of the asset. We disagree.
{¶ 13} The Third District Court of Appeals addressed a similar issue in Henderson v. Henderson, Mercer App. No. 10-01-17,
{¶ 14} Upon review, the appellate court determined that, aside from Henderson's testimony, there was "no further evidence * * * introduced at trial * * * supporting his] assertion or contesting [his] assertion." The court, in its decision to reverse the trial court's classification of the entire jointly-held IRA as marital property, determined that "[t]he record is simply void of evidence challenging [Henderson's] testimony that the $2,700.00 is his separate property." Id. at ¶ 30. The appellate court then concluded by stating, "despite the lack of evidence supporting [Henderson's] assertion and the deference due the trial court," the trial "court's classification of the property [was] against the manifest weight of the evidence" Id.
{¶ 15} Although the case at bar is similar, we find the Third District Court of Appeals
decision in Henderson distinguishable. Here, Husband testified that he entered into a 401K *5 plan in 1979, the year he began working for his current employer and nearly a decade before his marriage to Wife. Husband also testified that the value of the 401K plan in 1987, the year the couple was married, was $41,202, and that his premarital portion of the plan has since appreciated in value to $450,352.1 In support of his testimony, Husband introduced a "self-generated" spreadsheet which indicated the value of the 401K plan in 1987, as well as financial statements from his employer for the years 2000 through 2006.2 Neither Husband nor Wife were able to obtain any employer financial statements indicating the value of the 401K plan between 1979, the year it was supposedly established, to 1999.3 Wife testified that she knew that her husband had a 401K plan but she "had no idea of the amount."
{¶ 16} Here, unlike the facts presented in Henderson, Husband did not indicate any separate nonmarital property interest in the 401K plan on his Affidavit of Property. Further, after learning that neither he nor his wife could obtain any financial statements from his employer indicating the value of the 401K plan before 2000, Husband only provided his wife, or her counsel, with his unverifiable "self-generated" spreadsheet one week before the hearing. Although his spreadsheet may be some evidence indicating the value of the separate nonmarital portion of the 401K plan, Husband withheld this evidence from his wife and then argued that the evidence he presented at the hearing, including the spreadsheet, was "uncontroverted." Husband's actions, whether intentional or not, essentially denied his wife the opportunity to contest his claim that $450,352 of the 401K plan was separate nonmarital property. *6
{¶ 17} The trial court, in classifying the entire 401K plan as marital property, concluded that it was "without the ability to determine the separate non-marital portion of the asset in accordance with law." As noted above, the trial court is given deference in weighing the credibility of the testimony and evidence provided. Bey,
{¶ 18} Assignment of Error No. 4:
{¶ 19} "THE COURT ERRED IN FAILING TO ORDER PLAINTIFF TO PAY DEFENDANT CHILD SUPPORT."
{¶ 20} Husband, in his fourth assignment of error, argues that the trial court erred when it "determined that this case warranted that no support be awarded." We disagree.
{¶ 21} "The purpose of the child support system is to protect the child and his best interest." Kauza v. Kauza, Clermont App. No. CA2008-02-014,
{¶ 22} Pursuant to R.C.
{¶ 23} In this case, the trial court properly calculated child support according to the worksheet in R.C.
{¶ 24} Husband, in his second and third assignments of error, argues that the trial court erred in ordering him to pay Wife $6,666.67 per month in spousal support, and therefore, his remaining arguments will be addressed together. *8
{¶ 25} Assignment of Error No. 2:
{¶ 26} "THE TRIAL COURT ERRED IN AWARDING THE PLAINTIFF $6,666.67 A MONTH IN SPOUSAL SUPPORT."
{¶ 27} Assignment of Error No. 3:
{¶ 28} "THE TRIAL COURT ERRED IN AWARDING PLAINTIFF SPOUSAL SUPPORT WHICH EXCEEDS 50% OF DEFENDANT'S INCOME."
{¶ 29} Initially, Husband argues that the trial court erred in finding his annual income to be $192,000 for purposes of establishing spousal support because such a finding was not supported by the record. We disagree.
{¶ 30} The trial court's finding setting a party's income will not be reversed absent an abuse of discretion. See, generally, Grosnickle v.Grosnickle, Warren App. No. CA2006-03-037,
{¶ 31} At the hearing, Husband testified that his annual salary from his employment was "give or take," approximately $180,000, which included substantial yearly performance bonuses. On cross-examination, Husband testified that his base salary was $152,000 but that he was to receive a $40,000 bonus, thus increasing his total annual salary to $192,000. When asked further, Husband agreed that he was "in the $180,000 to $190,000 salary range with bonus." Testimony also indicated Husband received significant income from other investments not related to his employment.
{¶ 32} Based on the evidence presented, the trial court set Husband's income at $192,000 annually. After reviewing the record, we find that the trial court's decision is supported by competent and credible evidence. As a result, the trial court did not err in setting Husband's salary at $192,000, and therefore, did not abuse its discretion.
{¶ 33} Next, Husband argues that the trial court erred in ordering him to pay $6,666.67 per month in spousal support because, as a matter of law, it is an abuse of discretion for a *9 trial court to order an individual to pay spousal support in an amount exceeding 50 percent of their monthly income. We disagree.
{¶ 34} Husband, in support of his argument, relies on R.C.
{¶ 35} "To the extent possible, the amount specified to be withheld shall satisfy the amount ordered for support in the support order plus any arrearages owed by the obligor under any prior support order that pertained to the same child or spouse, notwithstanding any applicable limitations of sections
{¶ 36} The restriction on wage withholding orders found in Section 1673(b)(2)(A), Title 15, U.S. Code states, in pertinent part:
{¶ 37} "(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed-
{¶ 38} "(A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual's disposable earnings for that week; and
{¶ 39} "(B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual's disposable earnings for that week; * * *."
{¶ 40} Reading these statutes together, it is clear that a wagewithholding order cannot deduct more than 50 percent of an individual's disposable income. Cramblett v. Cramblett, Harrison App. No. 05 HA 581,
{¶ 41} Finally, Husband argues that the trial court erred when it ordered him to pay $6,666.67 per month in spousal support because it failed to consider the parties' lifestyle during the marriage or his wife's need.
{¶ 42} A trial court has broad discretion in determining whether an award of spousal support is appropriate. Justice v. Justice, Warren App. No. CA2006-11-134,
{¶ 43} In determining whether spousal support is appropriate and reasonable, the trial court must consider the factors outlined in R.C.
{¶ 44} Further, while the trial court need not make specific findings of fact or comment on every factor, "the trial court must indicate the basis for its award in sufficient detail to enable a reviewing court to determine that the award is fair, equitable and in accordance with the law." Carman v. Carman (1996),
{¶ 45} In this case, although the trial court's judgment cited evidence relevant to many of the statutory factors listed in R.C.
{¶ 46} Accordingly, without expressing a decision on the amount of the spousal support award ordered, we sustain Husband's second and third assignments of error, insofar as the trial court failed to indicate the basis for its award, and remand the cause and order *12 the trial court to revisit this issue to specifically explain its basis for finding an award of spousal support in the amount of $6,666.67 per month as "reasonable and necessary."
{¶ 47} Judgment affirmed and remanded.
WALSH, P.J., and POWELL, J., concur.