COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59320 : CYNTHIA P. MERIWEATHER : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHN A. MERIWEATHER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 21, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division of Common Pleas Court Case No. D-187191 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: ALICE RICKEL ELLEN S. MANDELL 3690 Orange Place 24500 Chagrin Blvd. Beachwood, Ohio 44122 Suite 101 Beachwood, Ohio 44122 -2- PATRICIA A. BLACKMON, J.: Defendant-appellant timely appeals certain aspects of a final judgment of divorce entered by the Cuyahoga County Court of Common Pleas. The first aspect of the judgment challenged by the appellant is whether the award and distribution of property as alimony to the appellee was reasonable, fair, and equitable as required by R.C. 3105.18. The second is whether the trial court's finding that the appellant violated a temporary restraining order in the sale of a van was proper. Thirdly, the appellant challenges the trial court's award of Sixteen Thousand Seven Hundred and Fifty Dollars ($16,750.00) in attorney fees as alimony to the appellee, to be paid by the appellant. Because we are unable to find an abuse of discretion in the decisions of the trial court on these issues, we affirm. The parties were married in August, 1972 with two children being born to the marriage. The appellant has a Bachelor of Arts Degree in Sociology. At the time of the divorce, he was employed by Ford Motor Credit as a Claims Adjuster. The appellant earned a gross annual salary of Forty-Nine Thousand and Five Hundred Dollars ($49,500.00) at the time of the judgment of divorce. The appellant's stock pension plan was valued at Fifty-0ne Thousand Dollars ($51,000.00). The appellee obtained a Master's Degree in Sociology during the marriage. She began employment outside of the home in 1978 and was employed at the time of the divorce as a social worker at University Hospitals of Cleveland. The appellee earned a gross -3- annual salary of Twenty-Nine Thousand and Eight Hundred Dollars ($29,800.00) at the time of the divorce. At the outset of her employment at University Hospitals, the appellee had accumulated retirement benefits from previous employment in the amount of approximately Twelve Thousand Two Hundred and Sixty Dollars ($12,260.00). She withdrew approximately Nine Thousand Dollars ($9,000.00) of this money in a lump sum prior to the divorce in March, 1988. Additional retirement benefits were part of her employee benefits package at University Hospital. The judgment entry of the trial court divides in half between the parties the appellant's retirement benefits as of June 29, 1989, the appellant's profit sharing plan, and the appellant's Ford stock. In addition, various bank accounts and personal property were divided between the two parties. Each party was also required to incur certain liabilities. Plaintiff-appellee was ordered to incur the remaining debt on a 1987 Ford Aerostar, all debts incurred by her since the separation, one-half of a particular loan in the amount of approximately Five Thousand Dollars ($5,000.00), and her own federal and state tax obligations. Defendant-appellant was ordered to incur his half of the Five Thousand Dollar ($5,000.00) loan, his VISA and MasterCard accounts, and all debts incurred by him since the separation. The appellant was also ordered to pay the sum of Two Thousand and Nine Hundred Seventy-Two Dollars and Fifty-Nine Cents ($2,972.59) as a reimbursement to the appellee for extra costs in connection -4- with the repurchase of a Ford Aerostar van. Lastly, the appellant was ordered to pay, as additional alimony, Sixteen Thousand and Seven Hundred and Fifty Dollars ($16,750.00) of the appellee's attorney fees. The appellant asserts three assignments of error. The first and third state the following and will be addressed together: I. THE TRIAL COURT ERRED IN THE AWARD AND DISTRIBUTION OF PROPERTY AS ALIMONY TO PLAINTIFF-APPELLEE IN THAT THE DISTRIBUTION WAS NOT REASONABLE, FAIR AND EQUITABLE AS REQUIRED BY OHIO REVISED CODE SECTION 3105.18. III. THE TRIAL COURT ERRED IN AWARDING $16,750.00 IN ATTORNEY FEES TO PLAINTIFF-APPELLEE AS ALIMONY TO BE PAID BY DEFENDANT-APPELLANT. R.C. 3105.18 enumerates the criteria and circumstances under which a Court of Common Pleas may award alimony./1\ The Court of Common Pleas may allow alimony it considers reasonable to either party. This alimony may be in the form of real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court considers equitable. R.C. 3105.18(A). This alimony statute further delineates some of the factors that the court shall consider in determining whether alimony is necessary and how the payment should be made. The court shall consider the relative earning ability of the parties, their ages and physical condition, retirement benefits, and the standard of /1\ Because this divorce was filed in 1989, this case was decided based on R.C. 3105.18 entitled Alimony. The new R.C. 3105.18 entitled Award of spousal support; modification was enacted in early 1991. -5- living established by the parties during the marriage. Further- more, the court shall consider the relative extent of education of the parties, their relative assets and liabilities, and the property that each party brought to the marriage R.C. 3105. 18(B). Under the provisions of this section, the Court of Common Pleas is vested with full equity powers and has broad discretion in the matter of allowing alimony in an action for divorce or alimony, and an order concerning alimony in such action may be reversed only where the evidence clearly shows an abuse of discretion or a misapprehension of the facts. A reviewing court may not substitute its judgment for that of the trial court and render judgment which it may think reasonable and proper. Ginn v. Ginn (1960), 112 Ohio App. 259. This court discussed the standard of review in division of marital property in Stack v. Stack (July 19, 1990), Cuyahoga App. No. 56976, unreported, wherein we stated; while citing Cherry v. Cherry (1981), 66 Ohio St. 2d 348: In reviewing a decision involving the division of marital property, we are guided by the language of the Ohio Supreme Court: A Court of Common Pleas has broad discretion to determine what property division is equitable in a divorce proceeding. The mere fact that a property division is unequal, does not, standing alone, amount to an abuse of discretion. Although the trial court has broad discretion in fashioning an equitable division of the marital property, that discretion is not without limits. Absent an abuse of discretion in formulating its division of marital property, a reviewing court, considering -6- the totality of circumstances, may not disturb that decision. Worthington v. Worthington (1986), 21 Ohio St. 2d 73, 76. Applying these principles to the instant case, we conclude that the trial court did not abuse its discretion either in the distribution of the marital property or in the awarding of additional alimony in the form of payment of attorney fees. The parties were ordered to divide equally the appellant's retirement benefits as of the date of the hearing, June 29, 1989. The parties were further ordered to share equally both the appellant's Ford Motor Company stock and the proceeds of appellant's profit sharing plan. The fifty percent division of the appellant's employment benefits was reasonable, fair, and equitable. This is an accurate evaluation of the circumstances particularly in light of appellee having to withdraw approxi- mately seventy-five percent of her accumulated retirement benefits to maintain the household, during a period where the appellant was not adequately contributing to the home. The distribution of the various and sundry smaller bank accounts was also done in a fair and equitable manner. The appellant was awarded his First Federal and Savings Loan [sic], his TRASOP account in the amount of One Thousand and Seven Hundred and Twenty Dollars and Forty-Two Cents ($1,720.42), One Thousand and One Hundred and Seventy-Three Dollars and Eleven Cents ($1,173.11) from liquidation of Ford Motor stock, One -7- Thousand Dollars from his Flex Compensation, and his jewelry in his possession. The appellee, with respect to the various smaller accounts, received her Chevy Chase Bank accounts, her pension, the I.D.S. account, Dollar Bank checking and savings accounts, and her jewelry in her possession. This was a fair, reasonable, and equitable distribution of the parties' various smaller financial accounts. This division of the various smaller accounts does not imply an attitude of unreasonableness on the part of the trial court. Furthermore, the same conclusion is reached regarding the disposition of the proceeds from the sale of both the Ford Pickup Truck and the 1978 Oldsmobile. The appellant received Two Thousand Dollars ($2,000.00) from the proceeds and the appellee One Thousand Dollars ($1,000.00). The liabilities of the parties were also apportioned fairly, reasonably, and in an equitable manner. The appellant was ordered by the trial court to incur his half of the Dollar Bank Consolidation loan, his VISA and MasterCard accounts, and all debts incurred by him since the separation. The appellee was ordered by the trial court to incur her half of the Dollar Bank Consolidation loan, all debts incurred by her since the separa- tion exclusive of her attorney fees, the remaining debt on the 1987 Ford Aerostar, E.S.E. Federal Credit Union, MBNA, Crestar, the sewer bill, and federal and state tax liabilities. -8- Additionally, the parties were given their respective custodial accounts for their children, household items in each person's possession, and the appellee was awarded the marital home. It should be noted, however, that the appellee is responsible for the mortgage, taxes, and insurance on the marital home once the appellant quit-claims his interest to her. This distribution of the parties' liabilities does not reflect an abuse of discretion by the trial court. The debts were apportioned between the parties in a fair and equitable manner. There is no indication that the apportionment of the parties' liabilities implies an attitude of unreasonableness on the part of the trial court or that the decision was arbitrary or unconscionable. On the issue of payment by the appellant of a portion of the appellee's attorney fees as additional alimony raised in assign- ment of error three, we find this decision to be fair, equitable, and reasonable and not an abuse of discretion. Because the assets and liabilities were distributed in an equitable manner, the parties were left with their respective salaries, benefits, and earning potential. According to the trial court's findings, the appellant's gross annual income was Forty-Nine Thousand and Five Hundred Dollars ($49,500.00). He no longer has any mortgage responsibilities to the marital home and was permitted to retain one-half of his accumulated retirement and employment benefits. Even though he was required to quit claim his interest in the -9- marital home to the appellee, he retained the Florida condominium. The appellant was employed throughout the marriage with Ford Motor Credit and presumably has job security and advancement opportunities. The appellee, at the time of the judgment entry, possessed a Masters Degree in social work. She had been employed by University Hospitals for one year at the time of the divorce, as a social worker. Even though at the time of the divorce she received the equity in the marital home, the appellant was awarded the condominium in Florida. She also receives pension benefits from her employment with University Hospitals. In light of the fact that the trial court did not award any sustenance alimony to the appellee over a period of years after the divorce, the payment of Sixteen Thousand and Seven Hundred Fifty Dollars ($16,750.00) was not an abuse of discretion. An award of alimony may include an allowance for reasonable attorney fees. A decision to award or not award attorney fees should not be interfered with absent a clear showing of abuse or prejudice by the trial court. Birath v. Birath (1988), 53 Ohio App. 3d 31. The starting point in the determination of an alimony award is to place both parties on a parity with the marriage standard of living (not necessarily an equality) after divorce considering all the factors of R.C. 3105.19. Parity may be accomplished by an award of sustenance alimony or of property-division alimony, -10- lump-sum alimony, or a combination of these. Buckles v. Buckles (1988), 46 Ohio App. 3d 102. At the very least, equity requires that a party receive sufficient sustenance alimony to bring him or her to a reasonable standard of living, one in reasonable relationship to the standard maintained during the marriage. Id. The trial court, in the instant case, awarded the payment of Sixteen Thousand and Seven Hundred Fifty Dollars ($16,750.00) as additional alimony. Given the parties' gross annual incomes, their respective lengths of employment, and the equitable division of the parties' assets and liabilities, this award in lieu of a period of sustenance alimony was fair, equitable, and reasonable and places both parties on a parity with the marriage standard of living. Consequently, the trial court did not abuse its discretion in the awarding of attorney fees as additional alimony. The appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT- APPELLANT VIOLATED THE TEMPORARY RESTRAINING ORDER WHEN HE SOLD THE AEROSTAR VAN, AND FURTHER ERRED IN REQUIRING DEFENDANT-APPELLANT TO REIMBURSE PLAINTIFF- APPELLEE FOR HER COSTS IN REPURCHASING SAID VEHICLE. The issue raised by this assignment of error is whether the appellant had notice of the temporary restraining order when he sold the Aerostar van. The appellant was served with the divorce complaint and motion for restraining order on July 5, 1988. The order prohibited the dissipation of marital assets. The appellant -11- asserts that while it is reasonable to assume that he knew the appellee was seeking a divorce, it is not reasonable to assume that he was aware of the contents of the restraining order. The appellant sold the Aerostar van on June 29, 1988. The appellee, who asserts that the sale of the van was in direct contradiction to the restraining order, argues that the husband's actions were very costly. The parties lost their downpayment on the vehicle. Furthermore, the appellee had to pay Two Thousand and Nine Hundred Seventy-Two Dollars and Fifty-Nine Cents ($2,972.59) extra to the dealership to repurchase the van. The appellee testified that the appellant did receive notice of the restraining order. Her testimony was that she forced a copy of the order on the appellant in late June. In addition, she testified that the appellant intercepted her mail from her attorney that contained a copy of the order. The trial court found the following: The parties not only lost the $4,087.67 used as downpayment unnecessarily, but by defendant's actions, whether intended or not, also caused an extra $2,972.59 cost to plaintiff to repurchase the family vehicle. Consequently, we find that the ruling of the trial court on this issue was not an abuse of discretion and does not reflect an attitude of unreasonableness on the part of the court. Appellant, by his own admission, was at the very least aware of the fact that his wife was seeking a divorce. This conclusion can be reached from the facts presented to the court. -12- Apparently, the trial court believed that the actions of the appellant were the sole cause of the added expenses. This decision was obviously based on the testimony of the parties and we are not going to disturb this decision, given our obligation to show great deference to the trier of fact. It is apparent that the trial court either believed that appellant had notice of the restraining or at the very least was seeking a divorce. In either instance, the appellant would have an obligation not to dissipate marital property or engage in conduct that was unduly costly to the marital assets. If the record were void of any evidence of notice of either the divorce or the restraining order, a different conclusion might be reached. Judgment affirmed. -13- It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN MCMANAMON, P.J., and PATTON, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .