COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60205 NADA KUCMANIC : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION STJEPAN KUCMANIC : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations No. D-192080 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: EDWARD L. JOSEPH Atrium Office Plaza 668 Euclid Avenue, #100A Cleveland, Ohio 44114-3041 RICHARD F. GONDA 75 Public Square Cleveland, Ohio 44113 For Defendant-Appellee: GEORGE GLAVINOS, JR. 24650 Center Ridge Road Suite 210 Westlake, Ohio 44145 - 2 - KRUPANSKY, J.: Plaintiff wife was granted a divorce from defendant husband by the Cuyahoga County Court of Common Pleas, Domestic Relations division. She now appeals from the order setting forth the amount of alimony and division of property awarded her. The relevant facts follow: Plaintiff and defendant were married in Yugoslavia in 1965. Plaintiff was fifteen years old at the time of the marriage. The parties emigrated to this country in 1966. Members of both plaintiff's and defendant's families were either already in this county or followed soon thereafter. Plaintiff and defendant lived in the Cleveland area throughout their married life. During that time plaintiff was essentially a homemaker, however, she also occasionally worked part-time outside the home in various positions, viz., machine operator, child care provider, and sales clerk beginning in 1986. Defendant became employed by General Motors (hereinafter "GM") in 1977; by 1989, he worked as a die repairman earning approximately $18.00 per hour. The parties had two children who were at the time of trial aged twenty-two and eighteen. Both children are presently in college. In 1969, plaintiff filed for a legal separation but thereafter reunited with defendant. In 1973, defendant filed for divorce but subsequently withdrew the complaint. Finally, on February 2, 1989, plaintiff filed the - 3 - instant action for divorce and obtained a restraining order against defendant. Defendant was therefore restrained from abusing or harassing plaintiff and from selling or transferring any personal or real property. Plaintiff also sought and was granted alimony pendente lite in the amount of $100 per week. The matter came to trial May 17, 1990. The court heard evidence from both parties concerning the marital situation, the marital assets, the earning capabilities of each person and other factors pertinent to the trial court's consideration of the matter. Thereafter, on June 8, 1990 in a memorandum opinion the court granted plaintiff a divorce and divided the marital assets thusly: 2. Plaintiff awarded 1985 Olds. 3. Defendant awarded 1984 Pontiac. 4. Plaintiff awarded one-half (1/2) of Defendant's pension up to 5/23/90. (QDRO). 5. Plaintiff awarded one-half (l/2) of Defendant's stock plan. 6. Plaintiff awarded $2,000 from proceeds of sale of BMW - (from sale of real estate). 1 This is defined by the Ohio Supreme Court in Hoyt v. Hoyt (1990), 53 Ohio St. 3d 177, as follows: A QDRO is qualified domestic relations order "which creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan ***" (Citations omitted.) - 4 - 7. Plaintiff and Defendant to divide household furnishings and tools. Sell balance and divide proceeds. 8. Real estate ordered placed on market-asking price $150,000. Divide proceeds in one-half (l/2) less $2,000 (see Item 6). 9. Defendant ordered to pay $150.00 per week as alimony effective July 1, 1990 and ending December 1, 1993. Not modifiable. COBRA to apply. Plaintiff thereupon filed with the trial court a motion for findings of fact and conclusions of law with regard to the award of alimony. Thereafter, in an entry dated July 2, 1990, the trial court stated as follows: On June 18, 1990 counsel for Plaintiff filed a Motion for Findings of Fact and Conclusions of Law (No. 168365) as pertains to the award of alimony as set forth in Memorandum Opinion of June 8, 1990 (Vol. 1636, Pg. 516-17). The Court based its allocation of property division pursuant to ORC 3105.18(B) by as set forth in Items 2, 3, 4, 5, 6, 7, 8, and 10 of the Memorandum Opinion. The Court found no marital savings account. With respect to Item 9 of the Opinion, the Court considered the evidence and testimony as to Items 1, 2, 3, 5, 7, 8, 9, 10, and 11 of ORC 3105.18(B). Further the Court took into consideration the payment of temporary alimony of $100 per week from April, 1989. 2 "COBRA" stands for Consolidated Omnibus Budget Reconciliation Act of 1985, and refers to supplying health care coverage for plaintiff during the term of alimony payments. - 5 - The Court also notes the age of the Plaintiff/wife (40); the absence of any physical or health impairment and the availability of full time employment to the Plaintiff. Motion considered ruled on. On July 24, 1990, the trial court issued a final judgment entry on the matter and with regard to alimony, stated the following: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that commencing July 1, 1990, the defendant shall pay to the Plaintiff the sum of One Hundred Fifty Dollars ($150.00) every week, plus poundage, as alimony for the Plaintiff, said sum to be paid through the Cuyahoga Support Enforcement Agency by a wage order on the Defendant's employer, General Motors Corporation. All payments which are not made through the Bureau of Support shall not be considered as payment of support. Said support alimony shall continue until December 1, 1993, and shall not be modifiable. Plaintiff filed a timely appeal from the order of the trial court citing one assignment of error for review; subsequently, plaintiff filed a notice of substitution of counsel to this court and new counsel was permitted to file a supplemental brief to this court in which a separate assignment of error was set forth. Plaintiff's initial assignment of error follows: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ALIMONY TO APPELLANT IN THE AMOUNT OF $150.00 PER WEEK FOR THE PERIOD FROM JULY 1, 1990 TO DECEMBER 1, 1993 GIVEN THE FACTORS WHICH THE COURT IS REQUIRED TO CONSIDER AS SET FORTH IN OHIO REVISED CODE SECTION 3105.18. This assignment of error has merit. - 6 - Plaintiff argues the trial court's award of alimony was so unreasonable given the factors required to be considered by the trial court pursuant to R.C. 3105.18 that it constitutes an abuse of discretion. This argument is persuasive. R.C. 3105.18 provides in pertinent part as follows: (A) 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 by installments, as the court considers equitable. (B) In determining whether alimony is necessary, and in determining the nature, amount, and manner of payment of alimony, the court shall consider all relevant factors, including, but not limited to, the following: (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 be 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; - 7 - (9) The relative assets and liabilities of the parties; (10) The property brought to the marriage by either party; (11) The contribution of the spouse as homemaker. (Emphasis added.) The trial court is required to indicate with sufficient specificity its basis for an award under R.C. 3105.18. Kaechele v. Kaechele (1988), 35 Ohio St. 3d 93; Mochko v. Mochko (1990), 63 Ohio App. 3d 671. In Ohio, alimony consists of two components: a division of marital assets and liabilities, and periodic payments for sustenance and support. Kaechele v. Kaechele, supra. The trial court has broad discretion in making an award of alimony. Holcomb v. Holcomb (1989), 44 Ohio st. 3d 128. A reviewing court cannot substitute its judgment for that of the trial court unless the totality of the circumstances indicates an abuse of discretion. Id. . An abuse of discretion connotes an attitude that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. In the case sub judice, the trial court ordered plaintiff be provided with sustenance alimony in the amount of $150.00 per week, such award to end on December 1, 1993. In its findings of fact and conclusions of law, the trial court set forth the factors it considered in reaching its decision, stating in pertinent part the following: - 8 - With respect to Item 9 of the Opinion, the Court considered the evidence and testimony as to Items 1, 2, 3, 5, 7, 8, 9, 10, and 11 of ORC 3105.18(B). Regarding an award of sustenance alimony, the Supreme Court of Ohio has stated the following: *** [E]xcept in cases involving a marriage of long duration, parties of advanced age or a homemaker- spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has the resources, ability and potential to be self-supporting, an award of sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties' rights and responsibilities. Kunkle v. Kunkle (1990), 51 Ohio St. 3d 64 at 69. Moreover, it has been stated that in achieving a reasonable property division alimony award, the trial court must first determine the separate property of each party and must divide between the parties the property acquired during the marriage, then the trial court must consider whether either party should be awarded alimony from the property of the other party by utilizing all relevant factors set forth in R.C. 3105.18. Buckles v. Buckles (1988), 46 Ohio App. 3d 102; Holcomb v. Holcomb, supra. Sustenance alimony is based on need and not merely on relative earning abilities. Ralston v. Ralston (1989), 61 Ohio App. 3d 346. However, the starting point in the determination of an alimony award is to place both parties on a "parity" i.e., neither party should profit at the expense of the other. Buckles v. Buckles, supra. - 9 - In the case sub judice, the trial court received evidence and heard the testimony of the parties at trial and then made approximately the following division of property: Award to Plaintiff Asset Awarded to De $ 75,000.00 House $ 75,000 1985 car Automobiles 1984 650.00 Stock 650 l/2 (valued as of 5/23/90) Pension 1/2 (v Defendant to maintain Health Insurance Receiv 2,000.00 Motorcycle Motorc One-half Household Furnishings One-ha 2,000.00 Attorney fees None Trial costs All $150.00/week to 12/1/93 Alimony - The trial court also received evidence concerning the following, viz.: (1) defendant was in his mid-forties and had been working for GM since 1977; (2) defendant at the time of trial was earning approximately $18.00 per hour with the potential of earning more if he continued to be employed by GM; (3) plaintiff was forty years of age; (4) plaintiff was at the time of trial employed by May Company as a sales clerk making minimum wage plus commissions, amounting to approximately $5.00 per hour; (5) the parties' children were emancipated and whatever needs the children had for schooling were currently being supplied by defendant; (6) plaintiff had been receiving temporary alimony from April 1989 in the amount of $100 per week; and (7) the parties had been married approximately twenty-four years. In view of the foregoing, this court is unable to say the trial court properly awarded alimony in the amount of $150.00 per - 10 - week until December 1, 1993. Although the trial court stated in the findings of fact and conclusions of law that it had specifically considered all the relevant factors listed by R.C. 3105.18, the trial court made no reference to the relative earning abilities of the parties, apparently choosing to blindly follow the rationale of Kunkle v. Kunkle, supra. In effect, the trial court determined since plaintiff had the resources, ability and potential to be self-supporting, therefore, its award of sustenance alimony must terminate after only a little over three years. However, the trial court was also required to consider the relative earning abilities of the parties, the standard of living established during the marriage, and the contribution of plaintiff as homemaker during the twenty-four year marriage. Considering the facts that (1) plaintiff earned hourly only one- third of defendant's wages, (2) plaintiff had little opportunity or potential to increase her earnings in the future, (3) the parties' standard of living during the marriage was very comfortable, and (4) that plaintiff had primarily been a homemaker for twenty-four years, the award of alimony in the case sub judice seems singularly inequitable. Mochko v. Mochko, supra. Therefore, the trial court abused its discretion in its award of alimony to the plaintiff. Accordingly, plaintiff's initial assignment of error is sustained. - 11 - Plaintiff's amended assignment of error stated in her supplemental brief follows: THE DIVISION OF PROPERTY, THE FAILURE TO PLACE A VALUE ON APPELLEE'S PENSION AND AWARD ATTORNEY FEES WAS INCONSISTENT WITH THE EVIDENCE AND CONTRARY TO THE EXISTING AUTHORITY. This court is unable to address this assignment of error. The issue of the trial court's treatment of defendant's pension benefits in its judgment entry of July 24, 1990 is not properly before this court for the following three reasons: (1) the trial court expressly retained jurisdiction over the division of defendant's pension benefits in its judgment entry of July 24, 1990; (2) appellant's supplemental brief was improvidently allowed; and (3) appellant's supplemental brief was not timely filed in this court, App. R. 13(A). A review of the chronology of events in the case sub judice is helpful in understanding this court's disposition of plaintiff's "supplemental" assignment of error. On July 24, 1990, the trial court filed its judgment entry of divorce. Therein the trial court specifically stated as follows: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall receive one- half (l/2) of Defendant's pension with his employer. General Motors Corporation, the value of which shall be determined as of May 23, 1990, and shall be secured by a Qualified Domestic Relations Order. (Emphasis added.) - 12 - Therefore, in its order the trial court retained jurisdiction to issue a QDRO. This was within its discretionary powers. Powell v. Powell (1989), 49 Ohio App. 3d 56; Hoyt v. Hoyt (1990), 53 Ohio St. 3d 177. On July 27, 1990, plaintiff filed an appeal to this court from the trial court's July 24, 1990 judgment entry. Thereafter, on November 11, 1990 plaintiff filed her appellate brief wherein she cited and argued her sole assignment of error as hereinbefore stated. On January 10, 1991, defendant filed his brief in this court in answer to plaintiff's original assignment of error. Four days thereafter, on January 14, 1991, it appears the trial court filed 3 its QDRO. However, no motion was made to this court to include the QDRO in this court's file of the case sub judice; therefore, since this order was not certified to this court through the proper channels, it cannot and will not be considered on this appeal. State v. Ishmail (1978), 54 Ohio St. 2d 402; State v. Ishmail (1981), 67 Ohio St. 2d 16. In April, 1991, plaintiff retained new counsel to represent her. Plaintiff then, on April 9, 1991, made two requests to this court: a motion for substitution of counsel and a motion to 3 A copy of the QDRO mysteriously appeared in this court's file sometime in February 1992. It was not certified through the proper channels to the office of the clerk of the Eighth District Court of Appeals nor was it a certified copy, however, it appears to be genuine since the trial court retained jurisdiction to issue a QDRO. - 13 - submit an amended brief. The second request was opposed by defendant; both motions were subsequently denied on April 29, 1991. On May 10, 1991 plaintiff filed a motion for reconsideration of the denial. This motion was also opposed by defendant and was also subsequently denied on May 24, 1991. Undaunted, plaintiff filed still another motion on October 28, 1991 for reconsideration of the denial. Although defendant also opposed this motion, thereafter, on November 7, 1991, this court issued the following order: MOTION BY APPELLANT FOR RECONSIDERATION OF COURT'S DENIAL OF APPELLANT'S MOTION TO FILE AN AMENDED BRIEF, REQUEST TO SUBSTITUTE NEW COUNSEL AND INITIAL APPLICATION FOR RECONSIDERATION IS GRANTED. APPELLANT MAY FILE A SUPPLEMENTAL BRIEF, NOT TO EXCEED 10 PAGES, BY NOVEMBER 25, 1991. THIS COURT WILL NOT RECONSIDER THE 10 PAGE LIMIT. APPELLEE'S SUPPLEMENTAL RESPONSE, NOT TO EXCEED 10 PAGES, IS DUE TWENTY (20) DAYS THEREAFTER. Plaintiff requested and received an extension of time to file her supplemental brief until December 6, 1991. In granting this request, this court stated there would be no further extensions. The supplemental brief to this court was finally filed on December 16, 1991. As can be seen from the foregoing chronology of events, plaintiff's supplemental brief was both improvidently allowed and untimely filed, therefore, it must be stricken from the file of the case sub judice. Furthermore, this court does not have jurisdiction to entertain the issue raised in the supplemental - 14 - brief for the reason that the trial court retained jurisdiction over division of defendant's pension via a QDRO and this issue 4 was never properly appealed. Accordingly, plaintiff's new assignment of error set forth in her supplemental brief to this court filed December 16, 1991 is hereby dismissed and the supplemental brief filed by plaintiff on December 16, 1991 is ordered stricken from the file of the case sub judice. App.R. 18(C). However, since plaintiff's first assignment of error has merit, the judgment of the trial court is reversed and the cause is remanded to the trial court for further consideration of the relevant factors to be considered pursuant to R.C. 3105.18 in making an equitable award of alimony. Judgment reversed and cause remanded. 4 In domestic relations cases, during the pendency of an appeal a trial court continues to have jurisdiction so long as the exercise of that jurisdiction does not interfere with the power of the appellate court to review the judgment under appeal and affirm, modify or reverse that judgment. Buckles v. Buckles (1988), 46 Ohio App. 3d 118. In the case sub judice the trial court's reservation of jurisdiction over the distribution of defendant's pension plan did not interfere with this court's resolution of plaintiff's first assignment of error. - 15 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said 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. ANN McMANAMON, P.J., and SPELLACY, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .