[Cite as Wormsley v. Wormsley, 2014-Ohio-3086.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
JIMMIE WORMSLEY,
PLAINTIFF-APPELLEE, CASE NO. 9-14-04
v.
ROBERT WORMSLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 2013 DR 0120
Judgment Affirmed
Date of Decision: July 14, 2014
APPEARANCES:
Robert C. Nemo for Appellant
Larry Heiser for Appellee
Case No. 9-14-04
SHAW, J.
{¶1} Defendant-appellant, Robert Wormsley, Jr. (“Robert”), appeals the
January 2, 2014 judgment of the Marion County Court of Common Pleas, Family
Division, granting the complaint for divorce filed by plaintiff-appellee, Jimmie
Wormsley (“Jimmie”). Robert assigns as error the trial court’s spousal support
award to Jimmie in the amount of $1,500 a month until the death of either party or
upon Jimmie’s remarriage. Robert also appeals the trial court’s order requiring
him to pay Jimmie’s attorney’s fees.
{¶2} The parties were married on June 7, 1975, and had two children who
are now emancipated adults. Robert worked outside the home during the marriage
while Jimmie sporadically worked part-time jobs but primarily remained in the
home tending the children and household affairs.
{¶3} On May 7, 2013, Jimmie filed for divorce after almost thirty-eight
years of marriage. Robert subsequently filed an answer and the case proceeded to
discovery.
{¶4} On October 31, 2013, the parties filed a stipulation which addressed
most of the issues in the case. The only matters that remained to be litigated were
Jimmie’s requests for spousal support and payment of her attorney’s fees by
Robert, and the trial court’s determination of which party was entitled to keep
certain gold chains acquired during the marriage. The trial court held a hearing on
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these outstanding issues, where each party presented evidence in support of their
case.
{¶5} At the hearing, Robert testified that he is fifty-six years old and has a
high school diploma as the highest level of his education. Robert stated that he
has been employed at General Mills for twenty-two years and works as a bag
packer packing fifty pound bakery mixes. Prior to General Mills, Robert worked
for the Wilson-Bohannon Block Company for ten months and Quaker Oats for
almost fourteen years. Robert testified that he consistently worked overtime—i.e.,
six or seven eight hour shifts a week—throughout the duration of the parties’
marriage. Robert also testified that he worked continuously during the marriage
with the exception of approximately one year when he lost his job at General Mills
in June 2012. Robert explained that he was terminated from his employment due
to failing a drug test. However, after participating in arbitration, Robert was
rehired at General Mills in August of 2013.
{¶6} Robert also admitted that in the fall of 2012 he liquidated his 401(k),
worth approximately $45,000, without Jimmie’s knowledge and spent all but
$5,000.1 Robert agreed that Jimmie should be awarded some spousal support. He
testified that $600 or $700 seemed to be a “fair” amount. (Tr. 11). Robert
submitted paychecks dating from August 22, 2013 to September 19, 2013 as
1
In the stipulated division of assets submitted by the parties, Jimmie was given the martial home free and
clear of any claims by Robert and unencumbered by any liens or debts. At the time of the hearing, the
marital home was valued at $45,000—approximately the same amount as the 401(k) liquidated by Robert.
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evidence of his income. His paychecks demonstrated that he earned a base pay of
$20.44 per hour and worked a significant amount of overtime at $30.66 per hour.
{¶7} Jimmie testified that she is fifty-eight years old and also has a high
school diploma as the highest level of her education. Jimmie recalled that she
worked during the beginning of the marriage at a child care center where their
oldest son also attended. However, their son began to experience health problems
which required her to leave her job at the child care center. Jimmie explained that
throughout the marriage she occasionally had part-time jobs working at minimum
wage. Jimmie testified that since April 6, 2012, she has been employed as a
department manager at Rural King earning $8.66 per hour. Jimmie also submitted
numerous paychecks from her employer as evidence of her income, which
demonstrated that she typically worked between seventy and seventy-nine hours in
a two week pay period. Jimmie stated that her employer does not always give her
forty hours a week despite the fact that she would be willing to work those hours.
{¶8} Jimmie testified that prior to Robert losing his job in June of 2012 she
received health insurance benefits through Robert’s employment, which covered
the cost of the medications she takes on a regular basis. She explained that she is a
diabetic and suffers from high blood pressure and high cholesterol, and that she
will need to purchase health insurance benefits after the divorce is finalized. She
also testified that she received no financial support from Robert after he regained
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his job at General Mills in August of 2013. Jimmie confirmed that she was
seeking spousal support that would serve to equalize the income between the
parties.
{¶9} Each party provided similar testimony regarding their standard of
living during the marriage. It was very seldom that they dined at restaurants.
They lived in a modestly priced home, drove older model vehicles, and took
vacations when their children were young, but never as a couple.
{¶10} On November 8, 2013, the trial court issued a ruling on the contested
issues remaining between the parties. The trial court calculated the parties’
monthly income and expenses based on the evidence submitted. In assessing
Robert’s income, the trial court averaged the overtime hours from the five
paychecks he submitted as evidence at the hearing. The trial court “then
annualized his overtime earnings based on the average number of hours at $30.66”
and added this number to his base earning wages of $20.44 per hour to derive an
annual income for Robert of $56,796.63. (Doc. No. 38 at 4). The trial court
attributed an annual income of $16,494.02 to Jimmie based on the evidence she
submitted at the hearing.
{¶11} The trial court discussed the relevant factors for determining whether
spousal support is appropriate under R.C. 3105.18(A) and (C). Specifically, the
trial court stated the following:
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The Court finds that an equalization of incomes is a reasonable
and appropriate approach for this long term marriage given the
facts and circumstances and the earning abilities of the parties.
The Court therefore finds that an award of spousal support of
$1,500.00 per month is reasonable and necessary. The Court
shall retain jurisdiction to modify the amount of spousal support
only.
(Doc. No. 38 at 4).
{¶12} In the same ruling, the trial court discussed a billing statement from
Jimmie’s attorney reflecting fees in the amount of $2,450. The trial court found
the attorney’s fees to be both reasonable and necessary and ordered Robert to be
responsible for paying the fees within sixty days of the date of the final divorce
decree.
{¶13} On January 2, 2014, the trial court issued its Judgment Entry of
Divorce incorporating its prior ruling on the spousal support and attorney’s fees
matters. With respect to the spousal support payments, the trial court specifically
stated in its Judgment Entry that:
The obligation of [Robert] to pay such payments to [Jimmie] * *
* shall end upon the following events (whichever occurs first):
the death of either party or [Jimmie’s] remarriage. The Court
shall retain jurisdiction over the amount of spousal support only.
(Doc. No. 39 at 4).
{¶14} Robert subsequently filed this appeal, asserting the following
assignments of error.
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ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ABUSED ITS DISCRETION BY
AWARDING APPELLEE $1,500.00 PER MONTH IN
SPOUSAL SUPPORT.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ORDERED APPELLANT TO PAY SPOUSAL SUPPORT FOR
AN INDETERMINATE PERIOD OF TIME.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ABUSED ITS DISCRETION IN
AWARDING ATTORNEY’S FEES TO APPELLEE.
First Assignment of Error
{¶15} In his first assignment of error, Robert challenges the trial court’s
award of $1,500 in spousal support. Even though Robert conceded at the hearing
that Jimmie is entitled to some spousal support, he disputes on appeal the amount
the trial court awarded.
{¶16} In matters relating to spousal support, the “trial court is provided
with broad discretion in deciding what is equitable upon the facts and
circumstances of each case.” Kunkle v. Kunkle, 51 Ohio St.3d 64, 67 (1990).
Thus, a spousal support decision is generally left to a trial court’s discretion,
subject to the statutory factors. See R.C. 3105.18(C). “A reviewing court cannot
substitute its judgment for that of the trial court unless, considering the totality of
the circumstances, the trial court abused its discretion.” Kunkle at 67.
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{¶17} R.C. 3105.18(B) allows trial courts, upon a party’s request and after
property distribution, to award reasonable spousal support. R.C. 3105.18(C)
provides a list of factors for the trial court to consider in awarding spousal support
and states the following:
(1) In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms of
payment, and duration of spousal support, which is payable
either in gross or in installments, the court shall consider all of
the following factors:
(a) The income of the parties, from all sources, including, but
not limited to, income derived from property divided, disbursed,
or distributed under section 3105.171 of the Revised Code;
(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;
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(i) 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;
(j) 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;
(k) The tax consequences, for each party, of an award of
spousal support;
(l) The lost income production capacity of either party that
resulted from that party’s marital responsibilities;
(m) Any other factor that the court expressly finds to be
relevant and equitable.
(2) In determining whether spousal support is reasonable and
in determining the amount and terms of payment of spousal
support, each party shall be considered to have contributed
equally to the production of marital income.
{¶18} In the instant case, Robert contends that the trial court erred when it
included his overtime hours and pay in its calculation of his annual income and
when it attempted to equalize the parties’ incomes based on that figure. Robert
argues that the trial court should have limited its calculation of his annual income
to his base pay of $20.44 per hour at forty hours a week and should not have
considered his overtime because the hours are “not guaranteed.” Robert also
challenges the trial court’s calculation of his annual income on the basis that it was
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drawn from a “small sample” of five paychecks from August 22, 2013 to
September 19, 2013.
{¶19} First, we are not sympathetic to Robert’s complaint regarding the
trial court’s use of these particular paychecks to determine his annual income
given the fact that these five paychecks are the only documentation of his income
that he chose to submit at the hearing. Second, both Robert and Jimmie testified
that Robert consistently worked overtime hours throughout the course of the
marriage. Therefore, we do not find the trial court abused its discretion by
including a figure for overtime wages in calculating Robert’s annual income.
{¶20} We also note that “although a trial court is not required to equalize
incomes, it is not prohibited from doing so where such a result is reasonable and
equitable.” Arthur v. Arthur, 3rd Dist. No. 17–11–28, 2012–Ohio–1893, ¶ 33. In
its November 8, 2013 ruling on the issue of spousal support, the trial court listed
several of the factors in R.C. 3105.18(C)(1), including the parties’ current
incomes, their relative earning abilities, their ages, Jimmie’s health insurance
expenses, Robert’s retirement benefits, the duration of the marriage, their standard
of living during the marriage, and the fact that Jimmie was mainly a stay-at-home
mother and homemaker who has accrued no retirement benefits from her minimal
employment outside the home. (Doc. No. 38). While the parties’ annual incomes
are similar after the trial court’s spousal support award, it is evident from the
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record that the trial court properly considered the statutory factors in calculating
the amount of spousal support. Consequently, we cannot find the trial court’s
spousal support award to be an abuse of discretion under the circumstances.
Second Assignment of Error
{¶21} In his second assignment of error, Robert argues that the trial court
erred in ordering him to pay spousal support until the death of either party or until
Jimmie remarries insofar as the trial court retained jurisdiction to modify the
amount of the support only. The Supreme Court of Ohio has held “that except in
cases involving a marriage of long duration, parties of advanced age or a
homemaker-spouse with little opportunity to develop meaningful employment
outside the home, where a payee spouse has the resources, ability and potential to
be self-supporting, an award of sustenance alimony should provide for the
termination of the award, within a reasonable time and upon a date certain, in
order to place a definitive limit upon the parties’ rights and responsibilities.”
Kunkle v. Kunkle, 51 Ohio St.3d 64, 69 (1990).
{¶22} Here, the parties were married for thirty-eight years. Jimmie is fifty-
eight years old and has a high school education. With the exception of a few part-
time jobs, Jimmie did not earn an income until the last year of the marriage when
she separated from Robert. Even though she is currently employed, she is making
a low wage of $8.66 an hour with no benefits. In setting forth the spousal support
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award, the trial court specifically noted the length of the marriage and the earning
abilities of the parties. Under these circumstances, we find no abuse of discretion
in the trial court setting an indefinite period of time for Jimmie to receive spousal
support. Accordingly, Robert’s second assignment of error is overruled.
Third Assignment of Error
{¶23} In his third assignment of error, Robert argues that the trial court
erred in ordering him to be responsible for paying Jimmie’s attorney’s fees. “ ‘An
award of attorney’s fees in a domestic relations action is committed to the sound
discretion of the trial court.’ ” Cichanowicz v. Cichanowicz, 3d Dist. Crawford
No. 3–13–05, 2013–Ohio–5657, ¶ 92, quoting Flowers v. Flowers, 10th Dist.
Franklin No. 10AP 1176, 2011–Ohio–5972, ¶ 21, citing Stuart v. Stuart, 144 Ohio
St. 289 (1944) (additional citation omitted). “This court will not reverse an award
of attorney fees absent a finding that the trial court abused its discretion.” Id.,
citing Stuart.
{¶24} On May 7, 2013, Jimmie filed a motion for attorney’s fees requesting
the trial court order Robert to pay her attorney’s fees pursuant to R.C.
3105.73(A).2 In her motion, Jimmie highlighted the parties’ income disparity and
claimed Robert had the ability to pay her attorney’s fees. At the hearing, Jimmie
2
R.C. 3105.73(A) states: “ In an action for divorce, dissolution, legal separation, or annulment of marriage
or an appeal of that action, a court may award all or part of reasonable attorney’s fees and litigation
expenses to either party if the court finds the award equitable. In determining whether an award is
equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal
support, the conduct of the parties, and any other relevant factors the court deems appropriate.”
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submitted a billing statement of her attorney’s fees as an exhibit. The parties
agreed the fees were reasonable and necessary, however Robert maintained that he
should not be held responsible for the payment of Jimmie attorney’s fees.
{¶25} In its November 8, 2013, ruling ordering Robert to pay Jimmie’s
attorney’s fees, the trial court specifically found the $2,450 in fees reflected on the
billing statement provided by Jimmie’s attorney to be reasonable and necessary.
Nor can we find anything in the record to indicate that the award of attorney’s fees
was unfounded, contrary to law, or otherwise improper. Accordingly, we do not
find the trial court abused its discretion in ordering Robert to pay Jimmie’s
attorney’s fees. Therefore, Robert’s third assignment of error is overruled.
{¶26} For the foregoing reasons, the assignments of error are overruled and
the judgment is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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