COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60828 FRANK J. MORRIS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CAROL ANN MORRIS : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. DR-196872 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: SHALE S. SONKIN, ESQ. MADELON SPRAGUE, ESQ. SONKIN & FROMSON MILLET & SPRAGUE CO., L.P.A. 540 Leader Building Four Commerce Park Square Cleveland, Ohio 44114 23200 Chagrin Blvd. #805 Cleveland, Ohio 44122 - 1 - DYKE, J.: Appellant, Frank J. Morris, and appellee, Carol Ann Morris, were divorced in 1990 and the trial judge distributed the marital assets and ordered alimony. On appeal appellant assigns four errors for review. "In Ohio, alimony is comprised of two components: a division of marital assets and liabilities, and periodic payments for sustenance and support." Kaechele v. Kaechele (1988), 35 Ohio St. 3d 93, 95. In Holcomb v. Holcomb (1989), 44 Ohio St. 3d 128, 130-132 the law concerning alimony awards was summarized. After a divorce has been granted, the trial court is required to equitably divide and distribute the marital estate between the parties and thereafter consider whether an award of sustenance alimony would be appropriate. The trial court is vested with broad discretion in determining the appropriate scope of these property awards. Although its discretion is not unlimited, it has authority to do what is equitable. A reviewing court should measure the trial court's adherence to the test, but should not substitute its judgment for that of the trier of fact unless, considering the totality of the circumstances, it finds that the court abused its discretion. Section 3(B), Article IV. "The term '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 (1983), 5 Ohio St. 3d 217, 219, 5 OBR 481, 482, 450 N.E. 2d 1140, 1142. - 2 - The starting point for any court division of marital property or award of alimony is R.C. 3105.18, which provides in pertinent part: (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; - 3 - (7) The standard of living of the parties established during the marriage; (8) The relative extent of education of the parties; (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. In Kaechele, supra, at 95, 518 N.E. 2d at 1200, we rejected a flat, equal property division rule and held that "*** equal division should be the starting point of the trial court's analysis when it considers the factors listed in R.C. 3105.18 and all other relevant factors. An unequal property division does not, standing alone, amount to an abuse of discretion. Equitable does not [necessarily] mean equal." I THE TRIAL COURT COMPLETELY ABUSED ITS DIS- CRETION IN THIS DIVORCE ACTION WHEN IT AWARDED AN INEQUITABLE DISTRIBUTION OF THE MARITAL ESTATE, TO-WIT: 89% TO THE APPELLEE, PLUS LIFETIME ALIMONY, DESPITE THE FACT THAT THIS IS NOT JUST OR EQUITABLE CONSIDERING THE CIRCUMSTANCES OF THIS CASE. After trial the trial judge entered a journal entry which stated as follows (in pertinent part): Asset Equity Net Value Marital Home 100,000 68,122.00 Pension Plan & - 4 - Lear Siegler Plan Unknown 34,662.97 Funds received by Defendant [Appellee] 11,237.76 Furniture 10,000.00 Bonds 900.00 Defendant's Auto 1,500.00 Plaintiff's Auto 2,500.00 128,922.73 MARITAL DEBTS Huntington Bank 3,390.00 Discover Card 990.00 Plaintiff's Mother 3,500.00 7,880.00 The entry also stated that appellant must continue to have appellee as the beneficiary on a life insurance policy for almost $100,000. This asset was not listed in the list of marital assets. However, appellant inaccurately lists sustenance and support alimony payments (for attorney fees and tuition to re- train appellee) as marital debts. Appellant contends that although the journal entry says that the evidence was considered in light of R.C. 3105.18 the opinion incompletely addresses some factors and fails to reflect consideration of others. There is no mention in the opinion of factors 4, 6 or 10. The opinion does state the assets and liabilities [Factor 9] and concludes as follows: - 5 - [The parties were married on August 25, 1962 [Factor 5.] ... [T]he marital assets are extremely limited .... [Factor 9.] ... [T]he Defendant is 50 years of age and the Plaintiff is 51 years of age; ... the Plaintiff enjoys good health but ... the Defendant [the appellee] ... has certain physical disabilities which present limitations upon her future ability to be self-sustaining; ... her health condition will require continual monitoring .... [Factors 1 and 2.] ... Asset: pension plan - net value: 34,662.97 .... [Factor 3.] Appellant insists that the appellee's testimony concerning her physical problems is insufficient. However, appellee could properly testify to her condition. Appellant was free to counter that testimony. Appellant argues that the judge failed to consider the fact that the pension is unavailable until appellant is sixty-five years old and that the life insurance is worth three times as much. The $100,000 from the life insurance is also not immediately available. The trial judge apparently required the life insurance as part of the support alimony rather than purely as a division of assets. Appellant contends that (1) the trial judge ignored the fact that appellee received from her mother a one-quarter interest in a house and its contents, (2) the standard of living was not addressed, (3) the trial judge ignored the fact that appellee has a beautician's license, excellent typing skills and some college, and (4) the trial judge failed to consider the fact that appellee - 6 - voluntarily supports their adult children (one of whom is on worker's compensation benefits and the other of whom works). Appellee argues that she is "virtually untrained," has not worked outside of the home for twenty-eight years (at appellant's insistence), worked only a few months (in 1962) as a beautician, has had only one college course, has not had time to look for work because she was caring for her ill mother, and has an ulcer, varicose veins that require surgery and anxiety attacks for which she is on medication. Appellee contends that there is no evidence of the value of her one-quarter interest in the house and that there was evidence at trial of their standard of living and her contribution as a homemaker. Appellee testified as follows: she has a beautician's license but has not worked as a beautician since 1962 and is not sure she could work as one now because of varicose veins in her legs that require surgery. She did not try to get a job until August of 1990 because she was taking care of her mother who has Alzheimer's. During the winter quarter of 1989 she took a three- hour typing course and can now type forty-five to fifty words a minute. To obtain an associate degree she needs ninety-three credit hours at $37.50 a credit hour. Her physical condition is poor; she has varicose veins that require surgery and is on medication for an ulcer and anxiety. She sees a doctor several times a year. Her mother gave her a one-quarter interest in a bungalow in Bedford and its contents. The parties' sons, James - 7 - and John, live with her without being asked to contribute but although James works, John is on worker's compensation benefits. Appellant testified that appellee worked as a beautician for a few months after they were married in 1962 and he later told her not to work outside the home. His net monthly pay is $2,800. The journal entry reflects consideration of the evidence and the factors in R.C. 3105.18. The opinion states that the judge considered the evidence. It is apparent from the judgment that the judge acknowledged the evidence that appellee had been a homemaker in a middle class home, has little education or training and has been unable to seek employment due to her mother's need for constant care. Although the opinion failed to note the gift from her mother there was no evidence of its value. (Counsel for appellant asked her if it had been appraised for $45,000 but she replied that she did not know.) We cannot say that the trial judge abused his discretion. Assignment of error No. I is overruled. II THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ALLOWED THE APPELLEE'S WITNESSES TO TESTIFY AT TRIAL, DESPITE APPELLEE'S FAILURE TO IDENTIFY SAID WITNESSES PRIOR TO TRIAL. Rule 12(B) of the domestic relations division of the Cuyahoga County Court of Common Pleas states as follows: (B) Witness Lists. (1) Each party shall submit to the opposing party or his counsel a list with the names and addresses - 8 - of all witnesses, including expert witnesses, expected to be called during trial. A copy of each list shall be filed with the Court. Such witness lists shall be exchanged no later than 14 days prior to the trial date or 3 days after receipt of notice of the trial date, whichever is later. Any witness list shall be supplemented anytime prior to 2 business days before the trial date. (2) No party shall be permitted to call any witness, except rebuttal witnesses, whose name was not included on the witness list or any supplement thereto, unless good cause can be shown as to why the need for such witness was not known to the party until after the time for supplementing his witness list expired, or unless the identity of the witness was otherwise known to the opposing party. The Court may however, in its discretion allow either party to call any witness whose name is not included on a witness list, when doing so will serve the interest of justice. (Emphasis added.) Appellee had two witnesses: herself and her attorney. Appellee's witness list with their names was late but was provided five days before trial. Appellant's objection was overruled after a determination that there was no prejudice. (Tr. 230 and 264.) We note that counsel for appellee never claimed that he was unprepared to cross-examine either witness. Rather, he insisted on exclusion because of counsel for appellee's previous - 9 - unyielding adherence to the strict procedural law. It was certainly no great surprise that appellee would testify in her own divorce action or that her counsel would testify to the fees charged. The trial judge had the discretion to allow the testimony "when doing so will serve the interests of justice." An abuse of discretion is more than an error of law of judgment, but rather an unreasonable, arbitrary or unconscionable decision. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. We cannot say that the trial judge abused his discretion. Assignment of error No. II is overruled. III THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE APPELLANT-HUSBAND TO PAY SUSTENANCE ALIMONY AND PROVIDE, AT HIS EXPENSE, COBRA COVERAGE TO THE APPELLEE DESPITE THE FACT THAT SUCH AWARD WAS NOT NECESSARY OR REASONABLE UNDER THE TOTALITY OF THE CIRCUMSTANCES, AND DESPITE THE FACT THAT THE TRIAL COURT FAILED TO MAKE A FINDING AS TO THE APPELLANT'S INCOME. A review of the evidence previously summarized reveals that the circumstances of the parties justify the conclusion that the sustenance alimony and cobra coverage ordered were necessary and reasonable despite the failure to state in the decision the amount of appellant's income. At trial a great deal of time was spent on establishing appellant's income. We will not reverse the decision of the trial court merely because the opinion did not state the figure in question. It is apparent from the trial - 10 - and the opinion that the parties' circumstances were carefully weighed. Assignment of error No. III is overruled. IV THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES TO THE APPELLEE-WIFE WHEN THE FINANCIAL ABILITY OF THE HUSBAND WAS NOT SUFFICIENT TO MEET THE DEMANDS OF THIS AWARD. Appellant contends that the trial judge abused his discretion in ordering an amount for attorney fees that appellant could not afford. Appellant's net monthly income is $2800. The attorney fees amounted to $6,000 of which appellee paid $3,000. (Tr. 266.) Appellant was ordered to pay only $1,000. The trial judge did not abuse his discretion. Assignment of error No. IV is overruled. Judgment affirmed. - 11 - 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. JAMES D. SWEENEY, J. CONCURS. FRANCIS E. SWEENEY, J., CONCURS IN JUDGMENT ONLY 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .