[Cite as Murphy v. Murphy, 2016-Ohio-7504.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STEPHEN MURPHY : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
PATRICIA MURPHY : Case No. 2016CA00055
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Family Court
Division, Case No. 2015 DR 00057
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 24, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN E. MYERS HOLLY DAVIES
101 Central Plaza South Chase Tower
200 Chase Tower 101 Central Plaza South
Canton, Ohio 44702 Canton, Ohio 44702
Stark County, Case No. 2016CA00055 2
Baldwin, J.
{¶1} Defendant-appellant Patricia Murphy appeals from the March 11, 2016
Decree of Divorce issued by the Stark County Court of Common Pleas, Family Court
Relations Division.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellee Stephen W. Murphy III and appellant Patricia Murphy were
married on July 1, 1989. On January 22, 2015, appellee filed a complaint for divorce
against appellant. At the time, the parties’ two children born as issue of the marriage
were emancipated. No answer or counterclaim was filed by appellant. Subsequently, an
evidentiary hearing before a Magistrate was held on October 7, 2015. At the hearing, the
parties stipulated to all matters except whether or not any spousal support should be
awarded to appellee and the length of the marriage.
{¶3} At the hearing, appellee, whose date of birth is June 5, 1952, testified that
he separated from appellant on approximately July 1, 1998. He testified that, during the
marriage, he was employed by the Community Health Center and, starting in 1997, by
Oriana House where is employed as a chemical dependency counselor. After separating
from his wife in 1998, appellee went to college and graduated with an associate’s degree
in technology. Appellee’s W-2 form for 2014, which was admitted as an exhibit, shows
that his gross earnings for 2014 were $36,403.15. After health and dental insurance costs
were deducted, appellee’s reported W-2 wages were $31,742.11. Appellee testified that
out of such sum, $1,968.01 was deducted for Social Security, $4,625.28 was deducted
for federal withholding and $460.26 was deducted for Medicare.
Stark County, Case No. 2016CA00055 3
{¶4} Appellee testified that he paid around $600.00 a month for rent, $90.00 a
month for electric, $125.00 a month for heat, $154.68 a month for cable, internet and
phone, and approximately $250.00 a month for groceries. He also testified that he spent
$10.00 a month on restaurants. Appellee has two vehicle loans that are in his name only.
He testified that he owed approximately $3,000.00 on a 2000 Volkswagen Bug and
approximately $4,000.00 on a 2006 Town and Country van. While the monthly payments
on the loans are approximately $400.00 a month, appellee also spends approximately
$20.00 a month on vehicle maintenance and $240.00 a month on gasoline. Appellee
further testified that he spends $25.00 a month each on haircuts and dry cleaning, a little
over $500.00 a month on auto and life insurance, $10.00 to $12.00 a month for
prescriptions, $25.00 a month for pet expenses, $15.00 a month additional rent to have
a cat, and $68.00 a month on a personal loan.
{¶5} Appellee testified that he paid for college using student loans and that, prior
to filing for divorce, he had filed bankruptcy but was unable to discharge the loans, the
approximate balance of which was $27,000.00. Appellee was unable to make any
payments on the student loans. When asked his average monthly expenditures, appellee
testified that they were around $2,616.97 and that he was living paycheck to paycheck.
To make ends meet, appellee has taken out payday loans, donated plasma a few times,
and borrowed $1,200.00 from a friend. He testified that he was not saving for retirement
because he was unable to do so. Appellee asked for spousal support from the date of
marriage to the time of the hearing.
{¶6} On cross-examination, appellee testified that he and appellant had been
living separately since they separated in 1998 and that each paid his/her own bills.
Stark County, Case No. 2016CA00055 4
According to appellee, the parties’ two children, who were minors at the time of their
separation, had been living with appellant since the parties’ separation and appellant had
primarily cared for them since then, although appellee kept the children on his health
insurance. Appellee testified that he believed that the children were still on his insurance
as of the time of the hearing. Appellee testified that he lived with his significant other,
Wanda Barker, and that his expenses were for two people.
{¶7} Appellee’s unsecured debts were discharged in a Chapter 7 individual
bankruptcy in 2012. Appellee testified that he had a premarital annuity in the amount of
$12,609.03, but no other retirement account and that, three and a half years earlier, he
had been diagnosed with Bell’s Palsy. The Bell’s Palsy did not prevent appellee from
working at Oriana House.
{¶8} At the hearing, appellant, who was born on March 30, 1961, testified that
she lived with her son who did not pay rent to her. She testified that she was currently
employed by Todd Associates Inc. in commercial marketing. According to appellant, she
started working there in 1987, left in 1994 and then returned in 2001. She testified that
the children were on her hospitalization and that her income was approximately
$87,000.00 a year. Appellant testified that since they separated on July 1, 1998, she and
appellant had maintained separate households and finances.
{¶9} When asked her income at the time of her marriage in 1998, appellant
testified that it was approximately $50,000.00 a year. She testified that her income had
increased due to hard work and promotions and that she had a high school diploma.
Appellant’s monthly expenses included $404.00 a month for health insurance, $297.00 a
month for a car loan, and $985.00 a month for rent. Appellant testified that she had no
Stark County, Case No. 2016CA00055 5
unsecured debt except for $300.00 on one credit card and that she paid cash for
everything. She testified that her health was fairly good and that there had been no
financial intertwining between her and appellee since their separation.
{¶10} On cross-examination, appellant agreed that her monthly gross income was
$7,515.36 and monthly net income was $4,146.54. She testified that the difference
between the two was spent on taxes, hospitalization, nursing home long term care, and
repaying a 401K loan. Appellant has a retirement plan through her employer. In 2014,
appellant paid $14,821.00 in federal income taxes. When asked why she had not filed for
divorce when she had been making in the high seventies, low eighties for quite some
time, appellant testified that it was an “oversight” on her part. Transcript of October 7,
2015 hearing at 41.
{¶11} On redirect, appellant testified that while she did not work for Todd and
Associates for a period of time between 1998 and 2001, she was still working at other
jobs and other avenues to make money.
{¶12} The Magistrate, in an Order filed on October 9, 2015, asked the parties to
brief the issue of duration of the marriage. Both parties filed post trial briefs. The
Magistrate, in a Decision filed on October 26, 2015, found that the termination date for
the marriage was October 7, 2015, the date of the final hearing. The Magistrate
recommended that appellant be ordered to pay appellee spousal support in the amount
of $1,800.00 a month for 98 months, that such support terminate upon the remarriage or
death of appellee, and that the court not retain jurisdiction over the duration or amount of
spousal support. Appellant filed objections to the Magistrate’s Decision.
Stark County, Case No. 2016CA00055 6
{¶13} The trial court, in a Judgment Entry filed on February 12, 2016, adopted the
Magistrate’s Decision in part and modified it in part. The trial court found that the
termination date of the parties’ marriage was October 7, 2015. The trial court ordered that
appellant pay appellee spousal support for 36 months rather than 98 months and that
spousal support would terminate upon the death of either party or the remarriage of
appellee. The trial court retained jurisdiction over the amount of support and ordered
appellant’s counsel to prepare the final entry.
{¶14} A Decree of Divorce was filed on March 11, 2016.
{¶15} Appellant now raises the following assignments of error on appeal:
{¶16} THE TRIAL COURT ABUSED ITS DISCRETION BY SELECTING
OCTOBER 7, 2015 AS THE DATE FOR TERMINATION OF THE MARRIAGE.
{¶17} THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
APPELLEE ANY AMOUNT OF SPOUSAL SUPPORT.
I
{¶18} Appellant, in her first assignment of error, argues that the trial court abused
its discretion in using October 7, 2015, the date of the final hearing, as the termination
date for the marriage rather than July 1, 1998, the date of the parties’ separation. We
disagree.
{¶19} Appellant, in her brief, cites to R.C. 3105.171(A)(2), which deals with
division of property and separate property. Such section states as follows:
(A) As used in this section:..
(2) “During the marriage” means whichever of the following is applicable:
Stark County, Case No. 2016CA00055 7
(a) Except as provided in division (A)(2)(b) of this section, the period of
time from the date of the marriage through the date of the final hearing in
an action for divorce or in an action for legal separation;
(b) If the court determines that the use of either or both of the dates
specified in division (A)(2)(a) of this section would be inequitable, the court
may select dates that it considers equitable in determining marital property.
If the court selects dates that it considers equitable in determining marital
property, “during the marriage” means the period of time between those
dates selected and specified by the court. (Emphasis added).
{¶20} Appellant argues that, under R.C. 3105.171(A)(2) and cited case law, the
trial court should have found the de facto termination of the marriage to be July 1, 1998,
the date of the parties’ separation. However, as noted by the Magistrate, there is no
authority to apply R.C. 3105.171, the property division statute, to the issue of spousal
support.
{¶21} Moreover, we cannot say that the trial court abused its discretion in finding
that the term of the marriage was from July 1, 1989 to October 7, 2015. In order to find
an abuse of discretion, we must determine the trial court's decision was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d
1140 (1983). As noted by the trial court in its February 12, 2016 Judgment Entry:
While the parties lived separately, there is no evidence that either
party intended to terminate the marriage on that date. Either party could
have filed a divorce between the date of separation and that date Husband
[appellee] finally did file. Wife [appellant] did not file. Wife’s only rational for
Stark County, Case No. 2016CA00055 8
not doing so was that it was an oversight, which is very hard to believe. As
the Magistrate notes, she did not even file an answer or counterclaim in this
action.
{¶22} In addition, after the parties separated, their children, who were living with
appellant, had visitation with appellee. Appellant testified that when the children were with
appellee, he was supporting them. Appellee testified that he maintained the children on
his health insurance when they were minors. The Magistrate, in her Decision adopted
with limited exceptions by the trial court, noted that the parties “shared a mutual interest,
or joint enterprise, in raising their two children, who were ages five and two when the
Husband moved out.”
{¶23} Appellant’s first assignment of error is, therefore, overruled.
II
{¶24} Appellant, in her second assignment of error, maintains that the trial court
abused its discretion in awarding spousal support to appellee. We disagree.
{¶25} 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).
{¶26} R.C. 3105.18(C)(1)(a) through (n) set forth 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:
Stark County, Case No. 2016CA00055 9
{¶27} (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:
(c) 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;
(d) The relative earning abilities of the parties;
(e) The ages and the physical, mental, and emotional conditions of the
parties;
(f) The retirement benefits of the parties;
(g) The duration of the marriage;
(h) 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;
(i) The standard of living of the parties established during the marriage;
(j) The relative extent of education of the parties;
(k) The relative assets and liabilities of the parties, including but not
limited to any court-ordered payments by the parties;
(l) 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;
Stark County, Case No. 2016CA00055 10
(m) 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;
(n) The tax consequences, for each party, of an award of spousal
support;
(o) The lost income production capacity of either party that resulted from
that party's marital responsibilities;
(p) Any other factor that the court expressly finds to be relevant and
equitable.
{¶28} Trial courts must consider all the factors listed in R.C. 3105.18(C). We have
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. The trial court must 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).
{¶29} Upon our review of the record, we cannot say that the trial court abused its
discretion in awarding spousal support to appellee. We find that there was sufficient detail
to enable this Court to determine the appropriateness of the award and that the trial
court’s award was not arbitrary, unconscionable or unreasonable.
Stark County, Case No. 2016CA00055 11
{¶30} In the case sub judice, the parties were married over 26 years. Throughout
the parties’ marriage, appellant, who only has a high school diploma, has earned
substantially more than appellee. While appellant‘s monthly gross income is $7,515.36,
or approximately $90,000.00 a year, appellee’s gross earnings for 2014 were $36,403.15.
{¶31} Appellant was, at the time of trial, in her early 50s, in good health, and has
health insurance through her employer. Appellant also contributes to a retirement
account, a life insurance plan and a long term nursing care plan. Appellant had significant
disposable income after her monthly expenses and testified that she paid cash for
everything.
{¶32} In contrast to appellant, testimony was adduced that appellee, who went to
college after the parties separated and is a chemical dependency counselor, lives
paycheck to paycheck. His monthly expenses are around $2,616.97 and he owes
approximately $27,000.00 on student loans. Appellant did not contribute to appellee’s
higher education. Testimony was adduced that appellee, who was 63 years old, is unable
to save for retirement or to pay on his student loans and was diagnosed with Bell’s Palsy,
which has not prevented him from working at Oriana House.
{¶33} Appellant contends that the trial court abused its discretion when it
drastically reduced the amount of spousal support recommended by the Magistrate
without explanation. As is stated above, the trial court reduced the duration of spousal
support from the 98 months recommended by the Magistrate to 36 months. We concur
with appellee that the trial court, by doing so, considered the parties’ separation. The trial
court, in its February 12, 2016 Judgment Entry, noted that it traditionally had granted
spousal support for a term of one third of the parties’ marriage. Based on the length of
Stark County, Case No. 2016CA00055 12
the parties’ marriage, the Magistrate recommended that spousal support be awarded for
a period of 98 months. The trial court, however, awarded spousal support for a period of
36 months, which is approximately one third of the parties’ marriage up to their separation.
{¶34} Appellant’s second assignment of error is, therefore, overruled.
{¶35} Accordingly, the judgment of the Stark County Court of Common Pleas,
Family Court Division is affirmed.
By: Baldwin, J.
Farmer, P.J. and
Hoffman, J. concur.
Murphy v. Murphy
Combined Opinion