COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60423 ROBERTA ANN MORO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION NICK JAMES MORO : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 14, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. 87-D-182687 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DON P. BROWN, ESQ. JOHN H. BEVER, ESQ. MEYERS, HENTEMANN, 33 East Bridge Street SCHNEIDER & REA CO., L.P.A. Berea, Ohio 44017 2121 Superior Building Cleveland, Ohio 44114 - 1 - DYKE, J.: Roberta and Nick Moro were granted a divorce after thirty- four years of marriage on November 1, 1989. This court vacated the first sustenance alimony award, Cuyahoga Co. App. No. 57218, and remanded for an inclusion of the basis for the trial court's award determination. The trial court entered a second judgment dated August 16, 1990, granting Roberta Moro $500 per month for three years and $300 per month for the following two years, or until she dies, remarries, or cohabitates. The judgment listed as its basis for the award of sustenance alimony ten separate factors: Pursuant to Ohio Revised Code Section 3105.18(B), this Court finds that: (1) In the years 1983 through 1988, Plaintiff has earned One Hundred Thirty One Thousand Five Dollars and Fifty Four Cents ($131,005.54) and Defendant has earned Two Hundred Seventy One Thousand Three Hundred Twenty Dollars and Forty Nine Cents ($271,320.49), more than twice as much as Plaintiff. It is reasonable to conclude that the relative earning abilities of the parties will not change in the future. (2) That the Defendant was fifty-eight (58) years old in 1988 and is in reasonably - 2 - good physical health and has worked for the Ford Motor Co. for over thirty (30) years and intends to continue in the same capacity for the foreseeable future. (3) That the Plaintiff was fifty-four (54) years of age in 1988, is in good physical health, has been employed full-time most of the time during the marriage, and has recently voluntarily terminated her employment because she intends to relocate in Arizona and seek employment there. (4) That the Plaintiff has no retirement benefits; that the Defendant has a pension benefit which as of December 31, 1987 will yield a monthly benefit of Eight Hundred Twenty Two Dollars ($822.00), payable at age sixty-five (65) (see Plaintiff's Exhibit 6 [)], that Defendant's pension benefits will increase as Defendant continues his employment with Ford Motor Co. (5) That neither party has any expectancies or inheritances. (6) That the parties have been married for thirty-four (34) years and that there were two (2) children born of the marriage, - 3 - both of whom are emancipated and self- supporting. (7) That the parties established a moderate standard of living during their marriage based on the total income earned by both parties. (8) That plaintiff is a high school graduate and took two College accounting courses. That Defendant completed the ninth grade of high school and learned the welding trade. (9) That neither party brought any assets to the marriage. (10) That the Plaintiff, in addition to working full time during most of the marriage, contributed to the marriage as a homemaker as well. The Court concludes that an award of sustenance alimony is fair and equitable after consideration of all of the evidence and of the above factors set forth in Ohio Revised Code Section 3105.18(B) including, but not limited to, the fact that over the past six (6) years the Defendant earned more than twice the income of the Plaintiff and - 4 - that the Defendant has employment with a large company with over thirty-four (34) years of seniority and pension benefits and is relatively secure, whereas Plaintiff is unemployed, is relocating to Arizona where she intends to seek, but has no assurance of, employment, and that she has no pension benefits. Nick Moro appeals from the award of sustenance alimony. He asserts one assignment of error. I THE TRIAL COURT ERRED IN AWARDING SUSTENANCE ALIMONY TO THE PLAINTIFF-APPELLEE. Appellant argues that the trial court was in error at paragraph four of its journal entry in that the pension from Ford Motor Company was already divided by the parties pursuant to their property settlement agreement. He argues further that the trial court relied on three factors which do not establish appellee's need for sustenance alimony. Finally, appellant asserts that the trial court abused its discretion in making an "unreasonable, arbitrary, and unconscionable" award determination. The respective roles of the trial and appellate courts in resolving domestic relations issues are set forth by the Ohio Supreme Court in Kunkle v. Kunkle (1990), 51 Ohio St. 3d 64, 67: - 5 - Courts in this state derive their power to award sustenance alimony from the statutes. R.C. 3105.18(A) and (B) provide a trial court with guidelines for determining whether alimony is necessary and the nature, amount and manner of alimony payments. Wolfe v. Wolfe (1976), 46 Ohio St. 2d 399, 414, ... The trial court is provided with broad discretion in deciding what is equitable upon the facts and circumstances of each case, but such discretion is not unlimited. Cherry v. Cherry (1981), 66 Ohio St. 2d 348, 355 ... A reviewing court cannot substitute its judgment for that of the trial court unless, considering the totality of the circumstances, the trial court abused its discretion. Holcomb, supra, at 131 ... As we noted in Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, ... for an abuse of discretion to exist, the court's attitude must be unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. After reviewing the totality of the circumstances to determine whether the trial court was unreasonable, arbitrary or unconscionable in its award of sustenance alimony, we find that the award does not constitute an abuse of discretion. Appellant claims that the trial court was in error at paragraph four of its journal entry. Paragraph four states that appellee has no retirement benefits and that appellant has a pension benefit which will yield a monthly payment when he reaches age sixty-five. In the judgment entry dated January 11, 1989, the trial court awarded one-half of the appellant's - 6 - retirement benefits to the appellee. It therefore appears that the trial court was in error when it stated that appellee had no retirement benefits. This was harmless error on the part of the trial court due to the fact that the respective retirement benefits of the parties constituted only one factor out of ten in the court's basis for the sustenance alimony award. Also, the January 11, 1989, judgment allocates the benefits between the parties when the benefits become eligible for distribution. Appellant will receive the benefits at age sixty-five, in 1995. The benefits, as part of the property settlement between the parties, have very little to do with appellee's present need for sustenance alimony. The three factors allegedly relied upon by the trial court about which appellant complains are: one, the disparity in the parties' incomes; two, the security of appellant's job; and three, appellee's voluntary relinquishment of her job and relocation to Arizona. Appellant asserts that none of these factors is relevant to the issue of appellee's need for the sustenance alimony. First, the trial court was correct in using the relative incomes of the parties to determine their earning abilities. Earning ability is most easily determined by reviewing what one is currently earning in the field. A disparity in the parties' current incomes is indicative of a disparity in relative earning abilities. R.C. 3105.18(B)(1) lists relative earning ability as - 7 - a factor for the court to review "[i]n determining whether alimony is necessary and in determining the nature, amount, and manner of payment ..." Secondly, the security of appellant's job is referred to in the concluding paragraph of the trial court's journal entry. This factor is relevant to a comparison of the parties' current economic situations. The trial court is well within its discretion to look at each party's economic situation in order to come to an equitable judgment. And finally, the fact that appellee has relinquished her job and plans to relocate to Arizona is relevant to her economic situation. Appellee's current employment status is imminently relevant to her need. Even if she has good prospects for employment in Arizona, the fact that she is currently unemployed is a relevant factor for the court's determination of the necessity of sustenance alimony. The trial court was not unreasonable, arbitrary or unconscionable in its reliance on any of the above factors in formulating a basis for its award determination. We find that the trial court did not abuse its discretion and its award of sustenance alimony was proper. The appellant's assignment of error is overruled. Judgment affirmed. - 8 - 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, Domestic Relations Division, 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. J.F. CORRIGAN, J., AND ANN MCMANAMON, J., CONCUR PRESIDING JUDGE ANN DYKE 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. .