[Cite as Scales v. Scales, 2009-Ohio-6865.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
DAVID L. SCALES,
PLAINTIFF-APPELLANT,
CROSS-APPELLEE, CASE NO. 8-09-11
v.
DESTINIE M. SCALES, OPINION
DEFENDANT-APPELLEE,
CROSS-APPELLANT.
Appeal from Logan County Common Pleas Court
Family Court
Trial Court No. DR07-10-0206
Judgment Affirmed
Date of Decision: December 28, 2009
APPEARANCES:
Dorothy Liggett-Pelanda for Appellant
Bridget D. Hawkins for Appellee
Case No. 8-09-11
PRESTON, P.J.
{¶1} Plaintiff-appellant and cross-appellee, David L. Scales (hereinafter
“David”), and defendant-appellee and cross-appellant, Destinie Scales (hereinafter
“Destinie”), appeal the Logan County Court of Common Pleas’ judgment entry of
divorce. We affirm.
{¶2} David and Destinie were married on August 27, 1983. (Apr. 28,
2008 Tr. at 60, 107). Five (5) children were born as issue of the marriage: David
L. Scales, II (D.O.B. 2/13/86); Hilary R. Scales (D.O.B. 9/18/89); Rebecca A.
Scales (D.O.B. 3/16/90); Paul M. Scales (D.O.B. 1/12/92); and Jordan W. Scales
(D.O.B. 11/28/95). (Id.); (Mar. 24, 2009 JE, Doc. No. 79).
{¶3} On October 15, 2007, David filed a complaint for divorce. (Doc. No.
1). The complaint proceeded to a final divorce hearing on April 28, 2008. (Doc.
Nos. 42, 51, 53).
{¶4} On March 24, 2009, the trial court filed its judgment entry granting
David’s complaint for divorce upon the ground of gross neglect under R.C.
3105.01(F). (Doc. No. 79). After making a division of the parties’ property, the
trial court ordered that David be designated as the residential parent and legal
guardian of the parties’ two minor children, Paul and Jordan. (Id.). The trial court
further ordered that Destinie pay child support to David in the amount of $238.24
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per month. (Id.). The trial court ordered that David pay Destinie spousal support
for sixty (60) months in the sum of $1,045.83/month less Destinie’s child support
obligation ($238.24) for a net total of $828.50/month. (Id.).
{¶5} On April 20, 2009, David filed his notice of appeal. (Doc. No. 90).
On April 23, 2009, Destinie filed her notice of appeal. David now appeals to this
Court asserting one assignment of error for our review. In her cross-appeal,
Destinie has asserted one assignment of error for our review as well. Since both
parties have appealed the trial court’s spousal support award, we elect to address
these assignments of error together.
DAVID’S ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT AWARDED
SPOUSAL SUPPORT TO APPELLEE. JUDGMENT ENTRY
FILED MARCH 24, 2009.
DESTINIE’S ASSIGNMENT OF ERROR ON CROSS-APPEAL
THE TRIAL COURT ABUSED ITS DISCRETION IN
LIMITING CROSS APPELLANT’S AWARD OF SPOUSAL
SUPPORT TO FIVE YEARS.
{¶6} In his assignment of error, David argues that the trial court abused its
discretion when it ordered him to pay $1,066.00 per month in spousal support for
five (5) years when the trial court failed to consider the R.C. 3105.18(C) factors.
Specifically, David argues that the trial court erred by not making specific findings
of fact relative to each statutory factor. David further argues that there was
insufficient evidence upon which the trial court made its spousal support
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calculation since there was no testimony regarding: Destinie’s monthly budget;
lost income production; or the amount of money Destinie would need to obtain
additional education. David also points out that the trial court did not attach a
calculation sheet to its judgment entry, and that the judgment entry is unclear as to
whether his support obligation is five (5) or six (6) years.
{¶7} Destinie, in her assignment of error, argues that the trial court abused
its discretion by failing to permanently award her spousal support. Destinie argues
that the trial court failed to consider the duration of the marriage and her physical
condition under R.C. 3105.18. Destinie also argues that she was entitled to a
permanent award of spousal support because: the marriage was a long-term
marriage; she was advanced in age and a homemaker; and she had little
opportunity to develop employment outside the home.
{¶8} R.C. 3105.18 provides, in relevant part:
(C)(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;
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(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.
A trial court must make specific findings “to enable a reviewing court to
determine the reasonableness of its order to grant or deny a request for spousal
support and that the relevant factors within R.C. 3105.18 were considered.”
Hendricks v. Hendricks, 3d Dist. No. 15-08-08, 2008-Ohio-6754, ¶31, quoting Lee
v. Lee, 3d Dist. No. 17-01-05, 2001-Ohio-2245. However, a trial court’s failure to
“specifically enumerate” the factors is not reversible error. Hendricks, 2008-Ohio-
6754, at ¶31, citations omitted. Appellate review of a trial court’s spousal support
determination is under an abuse of discretion standard. Id. at ¶29, citing Siefker v.
Siefker, 3d Dist. No. 12-06-04, 2006-Ohio-5154, ¶15. An abuse of discretion is
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more than an error of law; rather, it implies that the trial court’s attitude was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1980), 5
Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶9} The trial court’s judgment entry of divorce lists the R.C.
3105.18(C)(1) factors, and then provides the following analysis of those factors:
In considering the Defendant’s requests, the Court has
considered and reviewed all of these factors and FINDS as
follows:
As to income of the parties from all sources and the relative
income earning ability of the parties, the Plaintiff clearly has the
larger of the income as well as the earning capacity of the
parties. This was evident by the parties’ testimony and
respective DR-10’s filed with the Court.
As to the ages and physical, mental, and emotional conditions of
the parties, that they are on fairly equal footing as to these
factors. That the retirement benefits of the parties are a
consideration since the Defendant has the potential of very
minimal retirement of Social Security at best, while the Plaintiff
has accumulated retirement benefits through employment. At
the same time, these retirement benefits have been considered in
the division of property and should not be considered here.
The Court FINDS that the provisions of O.R.C. 3105.18(C)(1)(g)
and (h) are factors to be considered in the instant case, because
Plaintiff has the advantage over the Defendant with respect to
earning capacity. While the Defendant offered testimony
concerning her financial needs for spousal support, there was no
specific testimony as to the amount or the standard of living of
the parties established during the marriage. However, it is clear
from the income disparity that the standard of living of the
Defendant would be considerably less than that of the Plaintiff
without some consideration of spousal support. However, the
Court also considers Tremaine v. Tremaine (1996), 111 Ohio
App.3d 703, 676 N.E.2d 1249, which holds that O.R.C.
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3105.18(C)(1)(g) does not require a support award that provides
the parties with equal standards of living.
The Court further FINDS that there was no testimony offered
regarding the tax consequences of either party or the impact of
an award of spousal support, nor was there any testimony that
the Defendant lost income production capacity resulting from
her marriage responsibilities or anything regarding the standard
of living of the parties. Defendant did testify that she would
require additional education to obtain employment outside of
factory work in order to be able to be self-supporting even
though she provided no evidence of the cost or duration of such
training. Accordingly the provisions of R.C. 3105.18(C)(1)(j),
(k), (l), or (m) were not factors to be considered in the instant
case.
The Court further FINDS that as to the duration of the
marriage, the parties were married on August 27, 1983,
representing a marriage of over twenty-four years at the time of
the final hearing. The Court FINDS that based on a twenty-four
year marriage, and the other factors enumerated above, an
award of spousal support is indicated. In making that
determination, the Court considered and reviewed the following
case law: Kunkle v. Kunkle (1990), 51 Ohio St.3d [6]4, 554 N.E.2d
83, sets forth the proposition that absent mitigating factors an
award of spousal support should be of definite duration.
(Mar. 24, 2009 JE, Doc. No. 79, at 9-10).
{¶10} After reviewing the record herein, we cannot conclude that the trial
court abused its discretion by ordering David to pay Destinie spousal support in
the amount of $1,066.74 per month for five (5) years. Contrary to David’s
argument, the trial court clearly considered those R.C. 3105.18(C)(1) factors
relevant to the case before it. (Id.). The trial court also had before it a monthly
budget of the parties. (Apr. 28, 2008 Tr. at 98, 133); (Def.’s Ex. B). Also contrary
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to David’s assertions, the trial court clearly noted that Destinie failed to produce
evidence concerning her lossed income production capacity and how much money
she would need for further education. (Mar. 24, 2009 JE, Doc. No. 79, at 9-10).
The trial court, therefore, found that these factors ((k) & (l)) were not relevant to
its determination since no evidence was presented on these factors. (Id.). Both
parties failed to produce evidence concerning the tax consequences of the trial
court’s award of spousal support. (Id.). We find no abuse of discretion with the
trial court finding irrelevant those factors for which the parties failed to produce
evidence. We also reject David’s assertion that the trial court erred by failing to
attach a computation of its spousal support award to the judgment entry. A trial
court has broad discretion in fashioning a spousal support award based upon the
circumstances of the case. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 24, 550
N.E.2d 178; Noll v. Noll (1989), 55 Ohio App.3d 160, 162, 563 N.E.2d 44. Here
the trial court found the duration of the marriage (24 years) and the income
disparity important when fashioning its spousal support award. Nonetheless, it
also considered it important that the award be definite in duration. We find no
abuse of discretion with the trial court’s spousal support award. Finally, the trial
court clarified that David was ordered to pay spousal support for five (5) years in
its nunc pro tunc entry filed on May 19, 2009. (Doc. No. 111).
{¶11} We must also reject Destinie’s arguments. To begin with the trial
court did consider the duration of the marriage and Destinie’s physical condition
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in its judgment. (Mar. 24, 2009 JE, Doc. No. 79). In fact, Destinie was awarded
five (5) years of spousal support in large part due to the fact that the parties were
married for twenty-four (24) years. (Id.). The trial court also noted that the parties
were on “equal footing” with regard to their health, and the record supports the
trial court’s assessment in this regard. Although Destinie testified that she had
blood clots in her leg and back injuries, David testified that he had a pacemaker
and was taking medication for rheumatoid arthritis. (Apr. 28, 2008 Tr. at 95, 105,
109). Furthermore, we reject Destinie’s argument that the trial court abused its
discretion by failing to award her permanent spousal support. Contrary to her
assertions otherwise, Kunkle v. Kunkle does not require the trial court to award a
spousal support permanently if the spouse seeking support meets all of its
mitigating factors. Hutta v. Hutta, 177 Ohio App.3d 414, 2008-Ohio-3756, 894
N.E.2d 1282, ¶40, citing Sears v. Sears, 5th Dist. No. 2001CA00368, 2002-Ohio-
4069, ¶¶18-19. Although the marriage was long term, Destinie worked outside of
the home throughout the marriage including at: Wal-Mart, Bob Evans, Burger
King, and, for the past seven (7) years, on an assembly line for Honda. (Id. at 110-
11). When asked if she could return to her job at Honda, Destinie testified “yes *
* * I am optimistic.” (Id. at 112). Furthermore, at the time of the final divorce
hearing, Destinie was only forty-four (44) years old. (See Doc. No. 1 (Destinie’s
d.o.b. 8/22/63); Doc. No. 37 (same); Doc. No. 72 (same)). We cannot find that the
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trial court abused its discretion by not awarding Destinie a permanent award of
spousal support under the facts and circumstances of this case.
{¶12} For all these reasons, David and Destinie’s assignments of error are
overruled.
{¶13} Having found no error prejudicial to the appellant or the cross-
appellant in the particulars assigned and argued, we affirm the judgment of the
trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jnc
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