Burke v. Burke

[Cite as Burke v. Burke, 2011-Ohio-3723.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY

GEARY BURKE :
: Appellate Case No. 2011-CA-2
Plaintiff-Appellant :
: Trial Court Case No. 10-DR-11
v. :
: (Civil Appeal from Common Pleas
CINDY BURKE : (Court, Domestic Relations)
:
Defendant-Appellee :
:
...........

OPINION

Rendered on the 29th day of July, 2011.

.........

ANDREA R. YAGODA, Atty. Reg. #0024097, 2000 Henderson Road, Suite 250, Columbus,
Ohio 43220
Attorneys for Plaintiff-Appellant

JOSEPH BADER, Atty. Reg. #0083472, Goslee & Goslee, 114 South Main Street, Post
Office Box 416, Bellefontaine, Ohio 43311
Attorney for Defendant-Appellant

.........

HALL, J.

{¶ 1} Appellant, Geary Burke, appeals from a judgment and journal entry granting

his divorce rendered by the Champaign County Court of Common Pleas, Domestic Relations

Division. The Appellant contends that the trial court abused its discretion with regard to

spousal support, the division of liabilities and property, and the reservation of jurisdiction to
 2

modify the real estate and spousal support orders.

{¶ 2} Cindy and Geary Burke married in Las Vegas, Nevada on November 28, 2005.

Due to a shoulder injury, Cindy was unemployed and had no income prior to the marriage, but

she had applied for Social Security Disability. Geary received $6,819.00 gross per month

from Veteran’s Disability Compensation due to an automobile accident injury he suffered in

1974 while in the navy. Geary worked for a Veteran’s Affairs Hospital as a counselor for

veterans with disabilities. But, his prior injuries made this work increasingly difficult.

Geary eventually applied for permanent disability which was approved. At the time of

marriage, the State of Ohio had placed Geary on permanent disability, where he began to

receive $2,528.41 net per month ($2,940.58 gross) from the Ohio Public Employee Retirement

System (OPERS), in addition to the $6,819.00 he received from his Veteran’s Disability

Compensation. After deductions, this brought Geary’s net income to $9,347.41 per month at

the time he and Cindy married, although Geary was already paying $1,836.00 in spousal

support to his previous wife of 27 years.

{¶ 3} Following marriage, Geary paid all expenses for both himself and Cindy. The

couple lived in Cindy’s home on West Poplar Street, in St. Paris, OH., until 2006. Then, the

couple decided to purchase a new home on Country Road 5, in Zanesville, OH. When

purchasing the new home, Geary is the only person who signed the mortgage note, although

Cindy was listed on the deed. After purchasing this home, Geary continued to pay all

expenses, including the mortgage notes and utilities for both the Poplar Street and Country

Road 5 residences, as well as a new time-share he and Cindy purchased. In October, 2008,

Cindy received her Social Security Disability award which included a lump sum of
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approximately $28,000 of back-pay, and thereafter, she continued to receive $924.00 per

month. Cindy used this lump sum to settle debt she had with her parents and improve parts

of her home, but she did not give Geary any money toward their expenses or pay down her

credit card debt.

{¶ 4} The parties separated on November 11, 2009, and Geary filed for a divorce on

January 26, 2010 on the grounds of incompatibility. Cindy Burke filed a motion for

Temporary Spousal Support on April 1, 2010, and the trial court issued a temporary order

requiring Geary to pay Cindy temporary spousal support of $2,200.00 per month plus

processing charges. Geary Burke failed to do so, and on May 17, 2010, Cindy filed a motion

for contempt. Shortly thereafter, Geary Burke was found in contempt and sentenced to seven

days in jail, although he was permitted to purge the contempt through paying the temporary

spousal support. Following the divorce trial, the trail court issued the final judgment

mandating the following: Geary was ordered to pay Cindy $1,836.00 per month in spousal

support for one year, as well as $224.40 per month on the temporary spousal support

arrearage; Geary was ordered to pay $7,500.00 on Cindy’s Bank of America credit card within

ninety days; the parties were to retain their separate residences; the time share was to be sold

and each party would split the proceeds; and Cindy was to retain possession of a 42 inch

television purchased during the marriage.

{¶ 5} In FOUR Assignments of Error, Geary Burke asserts:

{¶ 6} (I) “THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DIVISION OF

THE PERSONAL PROPERTY AND DEBTS OF THE PARTIES AND IN CONSIDERING

EXHIBIT A TO DO SO.”
 4

{¶ 7} (II) “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED

CONTRARY TO LAW IN RESERVING JURISDICTION OVER THE REAL ESTATE

ISSUE.”

{¶ 8} (III) “THE TRIAL COURT’S AWARD OF SPOUSAL SUPPORT WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AN ABUSE OF

DISCRETION AND CONTRARY TO LAW.”

{¶ 9} (IV) “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED

CONTRARY TO LAW IN RESERVING JURISDICTION OVER THE SPOUSAL

SUPPORT ISSUE.”

I

{¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DIVISION OF

THE PERSONAL PROPERTY AND DEBTS OF THE PARTIES AND IN CONSIDERING

EXHIBIT A TO DO SO.”

{¶ 11} Initially, in his first assignment of error, Geary asserts that the trial court abused

its discretion and acted contrary to law in using the final hearing date to determine liabilities

and assets acquired “during the marriage,” as opposed to using the “date of separation.” “

‘Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or

unconscionable, or an “action that no conscientious judge could honestly have taken.” State

v. Brady (2008), 119 Ohio St.3d 375, 2008-Ohio-4493 at ¶23; Huffman v. Hair Surgeon, Inc.

(1985), 19 Ohio St.3d 83, 87. “The mere fact that a reviewing court would have reached a

different result is not enough, without more, to find error.” State v. Beechler, Clark App. No.

09-CA-54, 2010-Ohio-1900 at ¶67.
 5

{¶ 12} Statutorily, “during the marriage” is the time between the wedding date and the

date of the final hearing in the divorce action. R.C. 3105.171 (A)(2)(a). If the court

determines that using those dates would be inequitable, the court “may select dates that it

considers equitable in determining marital property.” R.C. 3105.171 (A)(2)(b). If a party

wishes the court to do that, the party must (1) identify the other date, (2) show why its use

would be more equitable, and (3) offer evidence of the value of assets to be divided on or

about that date. Rief v. Rief, Miami App. No. 06-CA-47, 2008-Ohio-266. Appellant contends

that because he did not make any financial contributions to Cindy following separation, each

maintained separate bank accounts, and only the marital balance sheet containing the parties’

debts at the “date of separation” was properly authenticated, the trial court abused its

discretion in using the “final hearing date” to determine the distribution and valuation of

liabilities. We disagree.

{¶ 13} The trial court made no determination that using the “final hearing date” would

be inequitable. Also, during trial, neither party requested that the trial court utilize the “date

of separation” for the distribution and valuation of liabilities. Accordingly, the trial court

reasonably used the “date of marriage” and the “final hearing date” to determine what property

and debt were acquired “during the marriage.”

{¶ 14} Geary Burke also contends the trial court abused its discretion in failing to

place values on liabilities. Again, we disagree. Although both parties had extensive credit

card debt prior to the marriage, each maintained his or her own debt throughout the marriage.

In determining that each party had the same credit cards they each entered the marriage with,

and any credit cards opened during the marriage were in one party’s name, the court sent each
 6

party out of the marriage with his or her own debt. Both Geary and Cindy willingly accepted

responsibility for the debt in their names, and neither party was required to take responsibility

for any debt of the other. Although it is questionable whether Cindy Burke’s marital balance

sheet (Exhibit A) was fully authenticated, it is unclear whether the trial court considered

Exhibit A to determine the distribution of liabilities to each party. Appellant is accurate in

stating the decree does not have values for liabilities; however, the trial court does not abuse

its discretion in failing to provide an explanation for this when parties in a divorce maintain

separate debt throughout the marriage and agree to leave with their own debt. Despite which

marital balance sheet the trial court used in determining debt acquired during the marriage,

each party still accepted responsibility for paying his or her own debt. We find no abuse of

discretion in regards to this distribution.

{¶ 15} Next, appellant argues the trial court abused its discretion in ordering him to

pay $7,500.00 on Cindy’s Bank of America credit card. We find that the trial court did not

abuse its discretion with this order. According to both parties’ testimony, at least some of the

balance on the Bank of America credit card was marital debt acquired by both parties

throughout the marriage. Moreover, while testifying on two separate occasions, Geary agreed

to “help Ms. Burke out” by paying half of the remaining balance on the card. TT. P. 41, ll.

17-18. At trial, the balance on the card was approximately $17,000.00, although Geary

testified to paying it down to $15,000.00 at separation. We find that ordering Geary Burke to

pay $7,500.00 toward the balance of the Bank of America credit card, especially when he

effectively acknowledged he would pay one half of the debt, was not unreasonable.

{¶ 16} Furthermore, appellant asserts the trial court abused its discretion in ordering
 7

him to convey the parties’ 42 inch television when the court made no findings as to the value

of any of the household goods and furnishings. Both parties testified that the 42 inch

television was marital property. Moreover, on cross examination, Geary testified that the

television was marital property that he forgot to list in Exhibit 6. TT. P. 52, ll. 17-20. The

court heard testimony that a total of four televisions were properly considered marital

property. TT p. 142, ll. 15-18. In accordance with the Revised Code, “the court shall provide

for an equitable division of marital property.” R.C. 3105.171. Marital property is any real or

personal property, or any interest in any real or personal property acquired during the

marriage. Id. At the time of the hearing, Cindy had one television, while Geary had three. We

find that it was not unreasonable for the trial court to order Geary Burke to give Cindy Burke

the 42 inch television, leaving each party with two televisions.

{¶ 17} Lastly, in this first assignment of error, Geary asserts that the valuation of his

home on Country Road 5, which he presented from the witness stand, is not conclusive as to

the home’s value. A trial court may only decide a case with the evidence the parties present to

it. Appellant testified he thought the house was worth $250,000. TT p. 86, ll. 1-2. Although

he seems to contradict that value in later testimony, TT p. 98-100, the “contradiction” was

based on what a realtor told him, not his own opinion. Id. Accordingly, the trial court

reasonably accepted the values the parties gave to their properties.

{¶ 18} Appellant’s first assignment of error is overruled.

II

{¶ 19} “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED

CONTRARY TO LAW IN RESERVING JURISDICTION OVER THE REAL ESTATE
 8

ISSUE.”

{¶ 20} In his second assignment of error, Geary Burke asserts that because the record

does not contain any agreement by the parties that the court retain jurisdiction over the

division of property, the trial court abused its discretion and acted contrary to law in reserving

jurisdiction over the real estate. We find that the trial court’s decision to reserve jurisdiction

is contrary to statutory authority for division of property. Undoubtedly, a trial court can

enforce its division of property order, and perhaps this is what the court intended when it

stated it reserved jurisdiction over the real estate issue. In its final decree, the trial court

awarded Geary the real estate on Country Road 5 and awarded Cindy the real estate on West

Poplar Street. This order was consistent with the mortgage notes for each property. The

home on West Poplar Street belonged to Cindy prior to and throughout the marriage. She

willingly retained possession of this property and agreed to take full financial responsibility

for it. Although the real estate on Country Road 5 was acquired during the marriage and had

both Burkes’ names on the deed, the mortgage note for that property was in Geary Burke’s

name alone. Accordingly, during pendency of the divorce, he willingly retained possession of

this property and at the trial he agreed to take full financial responsibility for it. This property

division appeared to be consistent with the parties’ requests.

{¶ 21} However, with respect to each property, the journal entry states: “The court will

retain jurisdiction over the real estate issue.” The court could not “retain jurisdiction” over the

real estate if to retain jurisdiction means reserving the ability to modify the property division.

According to the Revised Code, “a division or disbursement of property or a distributive

award made under this section is not subject to future modification by the court.” R.C.
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3105.171(I). We have held that this prohibition is jurisdictional. See, e.g., McKinney v.

McKinney (2001), 142 Ohio App.3d 604, 608. This not-subject-to-modification provision has

been amended to permit modification “upon the express written consent or agreement to the

modification by both spouses.” McConnell v. McConnell, Champaign App. No. 09-CA-43,

2010-Ohio-4757. But there is no express written consent here. If a property division order is

ambiguous, the trial court may properly clarify its meaning without violating R.C.

3105.171(I). McKinney v. McKinney (2001), 142 Ohio App.3d 604, 608. “An ambiguity

exists when a provision in an order or decree is reasonably susceptible of more than one

meaning.” Id. at 609. At this juncture, there does not appear to be an ambiguity. Thus, the

retention of jurisdiction was contrary to law.

{¶ 22} Appellant’s second assignment of error is sustained. Absent relief from the

judgment in accordance with Civ. R. 60, the trial court’s division of real estate is not subject

to future modification.

III

{¶ 23} “THE TRIAL COURT’S AWARD OF SPOUSAL SUPPORT WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AN ABUSE OF

DISCRETION AND CONTRARY TO LAW.”

{¶ 24} In his third assignment of error, Geary Burke contends the trial court abused its

discretion with its spousal support award. “A trial court has broad discretion in establishing

and modifying a spousal support award.” Dingess v. Smith, Washington App. No. 09-CA-18,

2010-Ohio-343, citing Cassidy v. Cassidy, Pike App. No. 03CA721, 2005-Ohio-3199, at ¶ 27.

“Thus, we will not reverse a spousal support award absent an abuse of discretion.” Id. In
 10

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 fourteen factors expressed in R.C.

3105.18(C)(1)(a)-(n), which governs awards of spousal support. “In allocating property

between the parties to a divorce and in making an award of sustenance alimony, 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.” Rief, supra, citing

Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 97.

{¶ 25} The parties were married for four and a half years, and Cindy earns

substantially less than Geary. However, Geary claims that the court erred in awarding spousal

support to Cindy and that, even if spousal support was warranted, the amount of the spousal

support award was unjustified. He asserts that because this is a marriage of short term, she

accumulated more debt alone during the marriage and left the marriage better off than she

entered it, he should not have to pay her spousal support. Furthermore, Geary contends the

court abused its discretion because it failed to explain why it arrived at the amount and

duration of spousal support it ordered him to pay, despite the evidence presented

demonstrating that, financially, it was not feasible for him to pay that amount.

{¶ 26} The trial court awarded Cindy spousal support in the amount of $1,836.00 per

month for one year, plus $224.40 per month on the temporary spousal support arrearage. It

arrived at this amount by imputing income to Geary in the amount of $112,000 to $115,000

per year, which was the money he received through his Veteran’s Disability Benefits and
 11

OPERS benefits.1 Cindy, on the other hand, received $11,088.00 per year from her Social

Security Disability. The court concluded that Geary’s income provided money which he could

temporarily contribute to assist Cindy in transitioning out of the marriage. In arriving at this

conclusion, the trial court found that since both parties were disabled, the earning capacity of

each was unlikely to change. Additionally, based on Cindy’s testimony and witness’

testimony, the court found that during the marriage, Cindy became accustomed to a higher

standard of living and would need assistance to begin living within her means. Furthermore,

the trial court found that although both parties had a significant amount of debt prior to the

marriage, the new standard of living led Cindy to accumulate a significant amount of

additional credit card debt during the marriage.

{¶ 27} Geary asserts that the spousal support award was against the manifest weight of

the evidence. If the trial court had properly weighed the evidence presented, he argues, the

court would not have ordered him to pay support or he would have been ordered to pay less.

During trial, Geary testified that before paying taxes and $1,836.00 per month of spousal

support to his previous wife, his monthly expenses are $7,133.68. After paying all of his

expenses, he has $2,300.00 of disposable income for the month. (TT p. 98 ll 14-18). Thus,

granting appellee a monthly spousal support award of $1,836.00 plus arrearage charges is not

economically feasible according to him.

1
We are uncertain whether the spousal support award violates The Former Spouses' Protection Act (FSPA) declaring that state
courts may not “treat as property divisible upon divorce military retirement pay that has been waived to receive veterans' disability benefits.”
Geary is already ordered to pay $1,836.00 to his former spouse. With $2,940.58 of Geary Burke’s monthly income from his OPERS
disability, the current spousal support award and arrearage charges, Geary will be required to pay some portion of his monthly Veteran’s
Disability benefit to Cindy. Thus, Geary Burke’s Veteran’s Disability Benefits were either considered for computation of the spousal support
award or effectively assigned to Cindy Burke. However, because this issue is neither raised below nor on appeal, we decline to consider it.
 12

{¶ 28} We find the trial court addressed each of the R.C. 3105.18(C)(1) factors that

apply in the present case and the evidence relevant to those factors. We are able to glean from

the court's journal entry the weight it gave to each, and on that basis we conclude that no abuse

of discretion is demonstrated in the spousal support award that was ordered.

{¶ 29} Accordingly, the third assignment of error is overruled.

IV

{¶ 30} “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED

CONTRARY TO LAW IN RESERVING JURISDICTION OVER THE SPOUSAL

SUPPORT ISSUE.”

{¶ 31} Appellant’s fourth assignment of error is the trial court abused its discretion in

retaining jurisdiction over the temporary spousal support order. The trial court awarded

Cindy Burke temporary spousal support for one year. Geary Burke asserts because this was a

marriage of short duration (less than five years) and it is unlikely either party’s earning

potential will significantly change within the following year, retaining jurisdiction over this

issue was an abuse of discretion. We find that although the facts are unclear on whether

retaining jurisdiction on the spousal support order was necessary, doing so does not constitute

an abuse of discretion.

{¶ 32} “The decision [of] whether to retain jurisdiction to modify a spousal support

award is within the trial court's discretion.” Seitz v. Seitz, Champaign App. No. 2010 CA 9,

2011-Ohio-1826, citing Board v. Board (March 23, 2001), Clark App. No.2000 CA 42.

“Although Ohio courts generally agree that a trial court abuses its discretion in failing to

reserve jurisdiction when imposing an indefinite award of spousal support, the same does not
 13

automatically apply when the court imposes a limited time period .” Deacon v. Deacon,

Cuyahoga App. No. 91609, 2009-Ohio-2491, citing Nori v. Nori (1989), 58 Ohio App.3d 69.

In determining whether a trial court’s decision to retain jurisdiction over spousal support

constitutes an abuse of discretion, an appellate court must consider the totality of

circumstances and the specific facts of each case. Id.

{¶ 33} Although the determination is a fact-sensitive one, we have held that a trial

court abused its discretion in failing to retain jurisdiction over a spousal support award of as

little as three years, finding that an award of such a duration was “long enough to justify

reservation of jurisdiction” because there was a substantial likelihood that the economic

conditions of the parties would change. Seitz, supra, citing Jackson v. Jackson (Nov. 8, 1996),

Montgomery App. No. 15795. We have also held that it is an abuse of discretion not to reserve

jurisdiction to modify an award of spousal support that is to continue for a significant [or

indefinite] period of time. Dyer v. Dyer (Jan. 22, 1992), Clark App. No. 2801; Canales v.

Canales (March 17, 1989), Greene App. No. 88CA52; see also, Kuper v. Halback, Franklin

App. No. 09AP–899, 2010–Ohio–3020, ¶ 62. Furthermore, other courts have found that a

trial court can retain jurisdiction to set spousal support, even if no spousal support is ordered

at the time of the final decree, provided that retention of jurisdiction is supported by the facts

of the case. Vona v. Vona (Feb. 5, 2001), Stark App. No. 200 CA 40.

{¶ 34} In this case, Cindy Burke was awarded a significant award for a short period of

time. Given the evidence of each party’s income and expenses, we find the trial court acted

within its discretion in retaining jurisdiction to modify the amount of the award if the financial

circumstances of either party change within the following year.
 14

{¶ 35} Appellant’s fourth assignment of error is overruled.

{¶ 36} We have found that the trial court’s determination to “retain jurisdiction over

the real estate issue” is error. In accordance with Appellate Rule 12(A)(1)(a), we modify the

judgment by deleting the retention of jurisdiction over the division of real estate. As modified,

the trial court’s judgment is Affirmed.

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DONOVAN and FROELICH, JJ., concur.

Copies mailed to:

Joseph R. Bader
Andrea R. Yagoda
Hon. Brett A. Gilbert