Taylor v. Taylor

[Cite as Taylor v. Taylor, 2013-Ohio-4958.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

CASSANDRA L.TAYLOR : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2013CA00130
:
ANDREW P. TAYLOR :
:
:
Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2012 DR 00589

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 4, 2013

APPEARANCES:

For Plaintiff-Appellant: For Defendant-Appellee:

KRISTINA M. HARLESS MICHAEL A. BOSKE
DAY KETTERER LTD. BOSKE LAW OFFICE
200 Market Ave. North 122 Central Plaza North
P.O. Box 24213 Canton, OH 44702
Canton, OH 44701-0173
Stark County, Case No. 2013CA00130 2

Delaney, J.

{¶1} Appellant Cassandra Taylor (“Wife”) appeals from the June 4, 2013

decision of the Stark County Court of Common Pleas, Family Court Division. Appellee

is Andrew Taylor (“Husband”).

FACTS AND PROCEDURAL HISTORY

{¶2} Husband and Wife were married on November 8, 2003, and no children

were born of the marriage. At the time of their divorce, the parties were married for

approximately nine years and three months.

Wife’s Employment, Expenses, and Health Issues

{¶3} Wife is employed at Office Max and her regular rate of pay is $17.91 per

hour. Her gross earnings in 2012 were approximately $28,810; in 2011, her gross

earnings were approximately $42,087, including a “significant” bonus of $8,019. In

2010, Wife’s gross earnings were $32,178, and in 2009 her gross earnings were

$35,361. Wife’s financial affidavit indicates the amount of her bonuses varies; Wife

testified her past bonuses have been less than $2000, but received a bonus of $3600 in

2009 per her financial affidavit. Her 2010 bonus was $1250.

{¶4} Wife’s biweekly paychecks indicate approximately $300 is taken out for

taxes. Her claimed monthly expenses include: $650 for rent, $130 for satellite and

cable, $300 for groceries, $150 for restaurants, $164 for vehicle payment, $300 for

gasoline, $50 for clothing, $100 for phone service, $100 for auto insurance, and $65 for

prescription medications. Wife further indicates monthly expenses of $20 for hair and

nail care, $50 for entertainment, and $8 for memberships. Wife testified to outstanding

medical bills arising from unreimbursed medical expenses and prescriptions totaling
Stark County, Case No. 2013CA00130 3

approximately $1,779. Additionally, Wife is paying a student loan and her wages are

garnished in connection with a tax debt. Wife testified she is $800 or $900 in the

negative each month because her expenses exceed her income.

{¶5} Rent constitutes a significant portion of Wife’s claimed expenses. At trial,

Wife testified on cross examination she presently lives with her boyfriend in a home

owned by her boyfriend’s mother. She stated she pays the mother $650 per month in

rent, although her boyfriend sometimes helps with the rent. No checks or receipts were

presented.

{¶6} Wife was on temporary disability for eight weeks due to wrist surgery and

has now returned to work. She suffers from a degenerative disease in her spine and

diabetes.

Husband’s Disability

{¶7} Husband is a former police officer and firefighter with Lawrence Township

and was diagnosed with multiple sclerosis in May 2012; he is no longer employed as a

result of his illness. Husband has been granted a PERS disability pension; his gross

monthly income is $864, from which $407 is deducted for medical insurance, $2 for

vision, $17 for dental, and $10 for taxes. Husband therefore testified he lives on $428

per month from his disability pension. He presently lives in the basement of his

mother’s residence.

The Trial Court Sustains Husband’s Objections

{¶8} Wife filed a complaint for divorce on May 14, 2012, along with a financial

affidavit, and Husband responded with an Answer, Counterclaim, and financial affidavit.
Stark County, Case No. 2013CA00130 4

The parties were able to resolve all issues except spousal support, therefore a trial was

held on January 28, 2013 and the magistrate’s decision was filed on January 29, 2013.

{¶9} Husband objected to the magistrate’s decision and a hearing on the

objection was held. The trial court sustained the objection on April 24, 2013, and a final

Decree of Divorce was granted on June 4, 2013. Pursuant to the final decree, Wife is

ordered to pay Husband spousal support in the amount of $830 per month for 27

months.

{¶10} Wife now appeals from the decision of the trial court.

{¶11} This case comes to us on the accelerated calendar. App.R. 11.1 governs

accelerated-calendar cases and states in pertinent part:

(E) Determination and judgment on appeal.

The appeal will be determined as provided by App.R. 11.1.

It shall be sufficient compliance with App.R. 12(A) for the

statement of the reason for the court’s decision as to each

error to be in brief and conclusionary form.

The decision may be by judgment entry in which case it will

not be published in any form.

{¶12} One of the most important purposes of the accelerated calendar is to

enable an appellate court to render a brief and conclusory decision more quickly than in

a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463

N.E.2d 655 (10th Dist.1983).

{¶13} This case will be reviewed according to these tenets.
Stark County, Case No. 2013CA00130 5

{¶14} Wife raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶15} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION TO THE PREJUDICE OF PLAINTIFF, WIFE, IN AWARDING

SPOUSAL SUPPORT OF $830.00 PER MONTH TO DEFENDANT, HUSBAND,

WHERE PLAINTIFF, WIFE, EARNS A NET MONTHLY INCOME OF $2,500 WITH

DOCUMENTED EXPENSES OF $3,700 PER MONTH WHILE DEFENDANT,

HUSBAND, RECEIVES A NET MONTHLY DISABILITY INCOME OF $1,228, BUT HAS

DOCUMENTED MONTHLY EXPENSES OF ONLY $869.”

{¶16} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION TO THE PREJUDICE OF PLAINTIFF, WIFE, BY ESTABLISHING

SPOUSAL SUPPORT FOR DEFENDANT, HUSBAND, WITHOUT CONSIDERING ALL

OF THE FACTORS SET FORTH IN R.C. 3105.18(C)(1)(a)-(n), AND ALL MATTERS

RELEVANT IN ESTABLISHING THE AMOUNT OF ANY SPOUSAL SUPPORT IN THIS

MATTER.”

{¶17} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION TO THE PREJUDICE OF THE PLAINTIFF, WIFE, BY

DETERMINING THAT SHE HAD THE ABILITY TO EARN $42,000 PER YEAR, AND

ESTABLISHING SPOUSAL SUPPORT BASED UPON THIS LEVEL OF INCOME.”
Stark County, Case No. 2013CA00130 6

ANALYSIS

{¶18} Wife’s three assignments of error arise from her assertion the trial court

abused its discretion in awarding spousal support of $830 per month to Husband and

will be considered together. For the following reasons, we find the trial court’s award of

spousal support is not arbitrary, unreasonable, or unconscionable.

{¶19} A trial court's decision concerning spousal support may be altered only if it

constitutes an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d

83 (1990). An 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, 5 Ohio St .3d 217, 450 N.E.2d 1140 (1983).

{¶20} R.C. 3105.18(C)(1)(a) through (n) sets forth the factors a trial court is to

consider in determining whether spousal support is appropriate and reasonable, and in

determining the nature, amount, terms of payment, and duration of spousal support:

(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;
Stark County, Case No. 2013CA00130 7

(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;

(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;
Stark County, Case No. 2013CA00130 8

(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.

{¶21} Trial courts must consider all the factors listed in R.C. 3105.18(C). Wife

argues the trial court did not sufficiently explain its rejection of the magistrate’s

determination of her earning ability. However, this Court has previously held that a trial

court need not acknowledge all evidence relative to each and every factor listed in R.C.

3105.18(C), and we may not assume that the evidence was not considered. Hutta v.

Hutta, 177 Ohio App.3d 414, 2008–Ohio–3756, 894 N.E.2d 1282, ¶ 27 (5th Dist.), citing

Clendening v. Clendening, 5th Dist. Stark No.2005CA00086, 2005–Ohio–6298, ¶ 16,

citing Barron v. Barron, 5th Dist. Stark No.2002CA00239, 2003–Ohio–649. The trial

court need set forth only sufficient detail to enable a reviewing court to determine the

appropriateness of the award. Id., citing Kaechele v. Kaechele, 35 Ohio St.3d 93, 518

N.E.2d 1197 (1988).

{¶22} As an initial matter, we find the trial court's decision includes sufficient

information regarding the factors to enable us to assess whether the award is fair,

equitable, and in accordance with the law. We note that an award of spousal support

will be reversed on appeal only if an abuse of discretion is shown. Bechtol v. Bechtol, 49

Ohio St.3d 21, 24, 550 N.E.2d 178 (1990). A reviewing court may not substitute its

judgment for that of the trial court unless, considering the totality of circumstances, the

trial court abused its discretion. Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541

N.E.2d 597 (1989). Based on the record before us, some of Wife’s most significant
Stark County, Case No. 2013CA00130 9

claimed expenses, particularly rent, are unsupported estimates which the trial court was

free to accept or reject.

{¶23} Wife further argues the trial court’s award of spousal support will result in

“negative cash flow” and argues the award must be reversed on the basis of our

decision in Asher v. Asher, 5th Dist. Holmes No. 00CA001, 2000 WL 873639 (Jun. 5,

2000). Asher is distinguishable from the instant case, however, because our decision in

that case was premised upon an unreasonably high award, not simply the fact that

spousal support created a negative cash flow for one of the parties. In this case, Wife

has demonstrated earning ability in excess of her claimed expenses. The trial court

reasonably found Wife’s reduced income in 2012 was a non-recurring event based upon

a temporary disability that does not affect her future earning capability. Based upon the

record, we cannot find the trial court abused its discretion in reaching these conclusions.

{¶24} Upon review of the decision, we find the award was fair, equitable, and in

accordance with the law despite the trial court’s reliance upon what Wife characterizes

as an “uncharacteristically high year.” Upon the evidence presented in the record, we

can find no abuse of the trial court's discretion in determining the spousal support

award.

{¶25} We have reviewed the record and find that the trial court considered the

factors listed in R.C. 3105.18(C) and did not abuse its discretion in determining spousal

support. Appellant’s three assignments of error are therefore overruled.
Stark County, Case No. 2013CA00130 10

CONCLUSION

{¶26} For the foregoing reasons, the judgment of the Stark County Court of

Common Pleas, Family Court Division, is affirmed.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.

HON. PATRICIA A. DELANEY

HON. JOHN W. WISE

HON. CRAIG R. BALDWIN