Kunkle v. Kunkle

Alice Robie Resnick, J.,

dissenting. I dissent from the majority’s *74holding in paragraph one of the syllabus because it unnecessarily restricts a trial court’s discretion to award permanent alimony. In addition I dissent from the majority’s application of syllabus two to the facts of this case. However, I agree that in a charge against the payor spouse’s estate, the sum must be definite or cease on a date certain. Thus, because the amount of alimony awarded in this case is not for a definite amount or for a fixed period of time, it is not permissible to make it a charge against the appellant’s estate.

This court has stated numerous times that a trial court has broad discretion in determining the division of marital assets and liabilities and the award of sustenance alimony. “After a divorce has been granted, the trial court is required to equitably divide and distribute the marital estate between the parties and thereafter consider whether an award of sustenance alimony would be appropriate. Teeter v. Teeter (1985), 18 Ohio St. 3d 76, 18 OBR 106, 479 N.E. 2d 890, citing Wolfe v. Wolfe (1976), 46 Ohio St. 2d 399, 75 O.O. 2d 474, 350 N.E. 2d 413. The trial court is vested with broad discretion in determining the appropriate scope of these property awards. Berish v. Berish (1982), 69 Ohio St. 2d 318, 23 O.O. 3d 296, 432 N.E. 2d 183. Although its discretion is not unlimited, it has authority to do what is equitable. Cherry v. Cherry (1981), 66 Ohio St. 2d 348, 355, 20 O.O. 3d 318, 322, 421 N.E. 2d 1293, 1298. A reviewing court should measure the trial court’s adherence to the test, but should not substitute its judgment for that of the trier of fact unless, considering the totality of the circumstances, it finds that the court abused its discretion. Section 3(B), Article IY of the Ohio Constitution; App. R. 12; Briganti v. Briganti (1984), 9 Ohio St. 3d 220, 222, 9 OBR 529, 531, 459 N.E. 2d 896, 898; Kaechele v. Kaechele (1988), 35 Ohio St. 3d 93, 94, 518 N.E. 2d 1197, 1199. ‘The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’ Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 5 OBR 481, 482, 450 N.E. 2d 1140, 1142.” Holcomb v. Holcomb (1989), 44 Ohio St. 3d 128, 130-131, 541 N.E. 2d 597, 599.

Alimony in Ohio may consist of both a division of marital assets and liabilities and periodic payments for sustenance and support. See Kaechele v. Kaechele (1988), 35 Ohio St. 3d 93, 95, 518 N.E. 2d 1197, 1200. R.C. 3105.18(A) gives broad discretion to the trial court to award alimony to either party:

“In divorce, dissolution of marriage, or alimony proceedings, the court of common pleas may allow alimony it considers reasonable to either party:
“The alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or in installments, as the court considers equitable.” (Emphasis added.)

Although the trial court has discretion in determining the nature, amount, and manner of payment of alimony, R.C. 3105.18(B) sets forth relevant factors the court must consider in its determination. These factors include but are not limited to:

“(1) The relative earning abilities of the parties;
“(2) The ages, and the physical and emotional conditions of the parties;
“(3) The retirement benefits of the parties;
“(4) The expectancies and inheritances of the parties;
“(5) The duration of the marriage;
“(6) The extent to which it would *75be inappropriate for a party, because he will be custodian of a minor child of the marriage, to seek employment outside the home;
“(7) The standard of living of the parties established during the marriage;
“(8) The relative extent of education of the parties;
“(9) The relative assets and liabilities of the parties;
‘ ‘(10) The property brought to the marriage by either party;
“(11) The contribution of a spouse as a homemaker.”

The majority in arriving at its decision seems to focus on only a few of these factors, such as relative earning abilities of both parties, appellee’s age at the time of the divorce, and the extent of appellee’s anticipated educational attainments. The majority, however, overlooks several important factors which the trial court must take into consideration, such as the duration of the marriage, the inappropriateness of appellee working outside of the home until her youngest child reaches the age of eighteen, and the standard of living established by the parties during their marriage. As we stated in Kaechele, supra, at 96, 518 N.E. 2d at 1200, “* * * all the statutory factors [enumerated in R.C. 3105.18 (B)] must be considered. The goal is to reach an equitable result. The method by which the goal is achieved cannot be reduced to a mathematical formula. Therefore, we hold that in making a sustenance alimony determination, the court must consider all the factors listed in R.C. 3105.18(B) and not base its determination upon any one of those factors taken in isolation.”

The majority states, “we find appellee has the resources, ability and potential to become self-supporting. * * * [Terminating sustenance alimony on a date certain would not work an undue hardship on appellee.” The record simply does not support this assertion. On the contrary, the record supports the trial court’s determination that appellee demonstrated a need for permanent alimony under the circumstances of this case. The record shows that the marriage of appellee and appellant lasted for eighteen years. Appellee, at the request of her husband, did not hold a job outside the home during those eighteen years. Appellee, at the time of her marriage in 1967, was a sophomore at Miami University, where she was majoring in elementary education. She completed only three semesters, or one and one-half years, before quitting college in order to stay at home and be a housewife and mother. At the time of the trial for divorce, appellee was enrolled in Findlay College and was studying business administration. Appellee has little, if any, marketable experience in her chosen field of study. See In re Marriage of Morrison (1978), 20 Cal. 3d 437, 453-454, 143 Cal. Rptr. 139, 150, 573 P. 2d 41, 52, and Brueggemann v. Brueggemann (Mo. App. 1977), 551 S.W. 2d 853. Because of appellee’s child-rearing and homemaking responsibilities, appellee anticipated graduating in four to five years. Appellee testified that she was planning on entering the workforce when her youngest child reached eighteen years of age. This child will be eighteen in the year 1996. Thus, appellee, who was born in 1948, will be seeking to enter the workforce for the first time in over twenty-nine years at the age of forty-eight. It will be very difficult, if not impossible in today’s job market, for appellee to obtain employment which will allow her the opportunity to become financially independent. In addition, at that age she will only have approximately seventeen years to create any type of financial security for her retirement years. Based upon the holding today, appellee would be required to *76leave her minor child at home to pursue employment, something which she was not required to do during the marriage. In fact, her husband encouraged her to stay home and be a homemaker forgoing any opportunity to develop work skills.

The majority finds that the trial court abused its discretion. The reasoning of the court in Canakaris v. Canakaris (Fla. 1980), 382 So. 2d 1197, 1203, is appropriate: “We cite with favor the following statement of the test for review of a judge’s discretionary power: ‘Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.’ Delno v. Market Street Railway Company 124 F. 2d 965, 967 (9th Cir. 1942).”

The trial court in the instant case did not abuse its discretion in determining that permanent alimony was proper. The majority states that the “modern trend favors terminating alimony on a certain date.” Such a bald statement ignores the fact that each divorce is unique, requiring the trial court to look at all pertinent factors before awarding alimony. “Sustenance alimony is based on need, and the trial court must have latitude to examine all the evidence before it awards an amount that is reasonable and equitable to both parties.” Kaechele, supra, at 95, 518 N.E. 2d at 1200. To imply that permanent alimony is inappropriate or that there is a trend away from it is totally misleading to the trial courts. These are very difficult situations, specifically where the husband has encouraged his wife to leave college and ultimately the workforce in order to devote full time to being a homemaker. At the time of divorce the husband’s earning capabilities were not affected, but without permanent alimony after a marriage of eighteen years the appellee will be forced to live at a much lower standard of living. In reality a homemaker is being penalized for forgoing her education and career in order to devote her time exclusively to her husband and children. “A major University of Michigan study found that seven years after a divorce, the real purchasing power of men’s income in relation to a standardized index of family need improved by 17%, while the real purchasing power of women’s income in relation to need declined by 7%. Moreover, this disparity is probably understated, because the study included a wider range of paid services among the ‘needs’ for men than for women. Lenore Weitzman’s more recent California study-found that a year after divorce, men’s standard of living rose by 42%, while women’s standard of living dropped by 73%. Every other study of standards of living following divorce has also demonstrated that men’s standard of living rises, while women’s falls.” (Emphasis sic; footnotes omitted.) Goldfarb, Marital Partnership and the Case for Permanent Alimony (1989), 27 J. Family L. 351, 361.

Recent case law from other jurisdictions shows that alimony, whether permanent or indefinite, can be awarded where the circumstances warrant it. See In re Marriage of Kristie (1987), 156 Ill. App. 3d 821, 510 N.E. 2d 14 (permanent maintenance appropriate where spouse is employed but has little prospect of earning an income to meet her needs); Womble v. Womble (Fla. App. 1988), 521 So. 2d 149 (permanent alimony award appropriate where wife had only high school education, worked as a full-time *77homemaker for twenty years, and in 1980 earned $4.00 per hour, with no prospect for advancement or increased earnings. Court held two primary elements to consider in making permanent alimony award are needs of the payee spouse and ability of payor spouse to provide the funds); Perreault v. Perreault (R.I. 1988), 540 A. 2d 27 (even though the court in the past construed alimony to be rehabilitative in nature, nothing precluded a trial court from awarding open-ended alimony award to wife where marriage was of long duration, wife’s health was poor, and wife lacked marketable skills); Mundy v. Mundy (Fla. App. 1986), 498 So. 2d 538 (rehabilitative alimony inappropriate where marriage was of relatively long duration and where recipient spouse had been homemaker for most of the marriage, had no present capacity for self-support, and had care of minor child); Teribery v. Teribery (1986), 357 Pa. Super. 384, 516 A. 2d 33 (permanent alimony award to wife at rate of fifty percent of husband’s net income not an abuse of discretion in light of parties’ incomes, earning capacities, ages, health, education, standard of living, assets, and needs, and where amount could be modified upon certain contingencies or changed circumstances); Tate v. Tate (S.D. 1986), 394 N.W. 2d 309 (award of alimony to wife until her remarriage not an abuse of discretion where wife’s role during twenty-year marriage was of wife, mother, and homemaker, wife had only high school degree with no other job training, and her most recent job paid $4.00 per hour); Stephens v. Stephens (Utah 1986), 728 P. 2d 991 (award of alimony to wife which was payable until wife’s remarriage or husband’s retirement not an abuse of discretion where wife, who was in her forties, did not pursue a career during a sixteen-year marriage, had few marketable skills, earned one-third of her husband’s salary, and had little chance of increasing salary without further education).

The majority limits an award of permanent alimony to those situations where the marriage is of long duration, or where the parties are of advanced age, where the homemaker spouse had little opportunity to develop meaningful employment outside the home, or where the payee spouse lacks the resources, ability, and potential to be self-supporting. Such a holding improperly restricts the discretion granted to the trial court to make alimony awards as it perceives the facts. R.C. 3105.18 mandates that the trial court consider all relevant factors. While the factors enumerated by the majority certainly are important, they are not the only criteria for awarding alimony.

Lastly, I take exception to the majority’s holding that awarding a percentage of appellant’s income to appellee was not only unreasonable but a penalty. Some jurisdictions have indeed found percentage awards inappropriate, but other jurisdictions have approved them. See Annotation (1977), 75 A.L.R. 3d 493. Each case must be determined on its own facts and in some instances only an award of a percentage of income will be equitable.

The court in Condy v. Condy (1946), 328 Ill. App. 8, 65 N.E. 2d 219, upheld a provision in divorce decree directing the husband to pay to the wife as alimony “ ‘one-half of his salary earned and received as a teacher or employee of the public schools of the City of Chicago, Illinois, so long as he is so employed, and in the event' of the termination of such employment, to pay one-half of his gross income. ***’.** *” at 9, 65 N.E. 2d at 220. Dunning v. Dunning (1985), 104 N.M. 296, 301, 720 P. 2d 1237, 1242, upheld “the use of percen*78tage alimony awards when appropriate safeguards are taken to insure that consideration is given to needs of the receiving spouse, as well as the ability of the paying spouse to pay the amount awarded.” Additionally, the court in In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E. 2d 1087, took a realistic approach when discussing a maintenance award by stating the policy favoring rehabilitative alimony for a limited time “must be balanced against a realistic appraisal of the likelihood that the spouse will be able to support herself in some reasonable approximation of the standard of living established during the marriage, especially where the marriage is of long duration and the spouse has had a long term absencé from the labor market. * * *” Id. at 464-465, 426 N.E. 2d at 1096. The court stated that “the 40 percent award does not appear excessive.” Id. at 466, 426 N.E. 2d at 1097. The court in In re Marriage of Stegbauer (1980), 84 Ill. App. 3d 83, 86, 404 N.E. 2d 1140, 1142, stated that “[t]he advantage of a percentage award is that it is self-adjusting, obviating the section 510 petition for modification in case the respondent’s income is reduced.” Percentage awards have also been recognized by legal commentators. See, generally, 24 American Jurisprudence 2d (1983) 649, Divorce and Separation, Section 654. Percentage awards are not per se improper and an abuse of the trial judge’s discretion.

There is no support in the record for the conclusion that the trial court was penalizing the appellant by entering the percentage award. “The realities of divorced women’s economic conditions] dictate that permanent alimony awards should be made available to equalize the postdivorce standards of living of the parties. Otherwise, women will be penalized for living according to the principles that marriage is a partnership and that homemaking duties are a valuable and important marital contribution. If alimony law is allowed to embody penalties for homemaking, it will be incumbent upon us ‘to reclassify the traditional all-American concept of Mom and apple pie and re-label it a most hazardous occupation that all young girls should be dissuaded from.’ McAllister v. McAllister, 345 So. 2d 352, 355 (Fla. Dist. Ct. App. 1977).” Journal of Family Law, supra, at 372.

For the foregoing reasons, I believe that the trial court had before it sufficient evidence to support an award of permanent alimony to appellee and did not abuse its discretion in making such an award. “In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action ■ is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.” Canakaris, supra, at 1203. By doing otherwise, an appellate court would be simply substituting its judgment for that of the trial judge.

In the instant case the decision of the trial judge has met this test for reasonableness and should not be disturbed. For these reasons, I would affirm the decision of the court of appeals except for making the award of alimony a charge against the estate of the appellant.

Wright, J., concurs in the foregoing dissenting opinion.