COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67195 DONALD M. ROBINER : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : LINDA G. ROBINER : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 7, 1995 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Court, Case No. D-208229. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Donald M. Robiner, Esq. P.O. Box 14400 Cleveland, OH 44114 For Defendant-Appellee: Robert I. Zashin, Esq. Zashin, Rich & Satula 1490 Illuminating Building 55 Public Square Cleveland, OH 44113 Andrew J. Simon, Esq. Cameratta & Simon 7976 Broadview Road, Suite 100 Broadview Heights, OH 44147 -2- DAVID T. MATIA, P.J.: Donald M. Robiner, plaintiff-appellant/cross-appellee ("plaintiff-appellant"), appeals the decision of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, which granted the parties a divorce. Plaintiff-appellant contests the trial court's assessment of the marital estate, the designation of Linda G. Robiner, defendant-appellee/cross-appellant ("defendant- appellee"), as beneficiary of plaintiff-appellant's life insurance policy, the spousal support orders, the award of attorney fees and the trial court's denial of plaintiff-appellant's motion for a new trial. Defendant-appellant has filed a cross-appeal contesting the trial court's assessment of marital property and the trial court's interim spousal support award. This court affirms in part, reverses in part and remands for further proceedings consistent with the opinion herein. I. STATEMENT OF FACTS Donald M. Robiner, plaintiff-appellant, and Linda G. Robiner, defendant-appellee, were married on June 29, 1958. Two sons were born as issue of the marriage, both of whom were emancipated at the time of the trial. Plaintiff-appellant is a licensed attorney in the State of Ohio. Defendant-appellee worked full-time until their two sons were born. At that time, defendant-appellee stayed home to raise the children and acted primarily as homemaker. Defendant-appellee had returned to the work force in the mid- 1970's and continued to work various part-time jobs throughout the -3- 1980's. Beginning in the 1980's, the couple began experiencing a number of financial difficulties primarily resulting from plaintiff-appellant's law firm affiliations. Among other things, their financial situation led to problems in the marriage. By October of 1990, the marriage had deteriorated to the point where defendant-appellee informed plaintiff-appellant that she wanted a divorce. At approximately the same time, both parties consulted with attorneys in an effort to work out a dissolution of their marriage. Although defendant-appellee wanted to leave the house at this time, plaintiff-appellant requested her to stay for two reasons: 1) plaintiff-appellant was in the negotiation process of securing a new job with a downtown law firm and 2) it would preserve marital assets by minimizing the parties living expenses pending the divorce. On January 1, 1991, plaintiff-appellant began his new job at the law firm. In February of that year, defendant-appellee "couldn't stand it anymore" and left the marital residence. Defendant- appellee took with her personal belongings and various pieces of furniture and/or furnishings. The very next day, February 7, 1991, plaintiff-appellant changed the lock on the doors and filed for divorce with a restraining order. On February 22, 1991, defendant-appellee filed a counterclaim for divorce and for interim spousal support. The parties then proceeded to file a number of motions including an -4- emergency motion for temporary spousal support, motions for restraining orders and injunctive relief. On December 5, 1991, the trial court ordered plaintiff- appellant to pay $3,750 per month and awarded interim attorney fees. Plaintiff-appellant subsequently filed a motion to vacate this award pursuant to Civ.R. 60(A) and (B). On September 8, 1992, after the removal of the trial judge, the parties resolved the motion to vacate via an agreed entry in which the previous support and attorney fees order were vacated and a new temporary support order in the amount of $1,600 was issued. For approximately one year, numerous motions were filed by each party and the case had been re-assigned to different judges a number of times. Finally, on September 23, 1993, the trial commenced. On November 23, 1993 the trial court granted the parties divorce and disposed of the remaining issues relating to property division, spousal support and attorney fees. On March 28, 1994, plaintiff-appellant filed a motion for a new trial which was denied by the trial court. Plaintiff-appellant timely filed this appeal and defendant-appellee has filed a cross appeal. II. FIRST ASSIGNMENTS OF ERROR Donald M. Robiner, plaintiff-appellant, states as his first assignment of error: I. THE TRIAL COURT'S FAILURE TO UTILIZE A DE FACTO TERMINATION DATE IN ASSESSING THE SCOPE AND VALUE OF THE MARITAL ESTATE IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE AND CONSTITUTES AN ABUSE OF DISCRETION. -5- A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION REGARDING THE DIVISION OF MARITAL PROPERTY. Plaintiff-appellant argues the trial court abused its discretion in evaluating the scope and value of the marital estate. Specifically, plaintiff-appellant argues not only had defendant-appellee incurred substantial debt in the months preceding her unilateral decision to abandon the marriage, but she also confiscated approximately $50,000 in securities from the parties safety deposit box and an additional $7,000 of marital funds in violation of the trial court's restraining order. Moreover, plaintiff-appellant argues the trial court abused its discretion in failing to utilize the date of separation as the de facto termination date of the marriage as opposed to the final trial date for purposes of valuating the parties marital assets. Plaintiff-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: DIVISION OF MARITAL PROPERTY. Recently, in Bisker v. Bisker (1994), 69 Ohio St.3d 608, the Ohio State Supreme Court addressed the issue of the division of marital property: It is well established that a trial court is vested with broad discretion when fashioning its division of marital property. However, a trial court's discretion is not unbridled. The award need not be equal, but it must be equitable. A reviewing court will not substitute its judgment for that of the trial court unless the trial court's decision is unreasonable, arbitrary or unconscionable. At a minimum, the trial court must address the -6- factors listed in R.C. 3105.18 in arriving at its decision. To do otherwise is an abuse of discretion. ***. (citations omitted) In Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, the term "abuse of discretion" was described as follows: [A]n abuse of discretion involves far more than a difference in *** opinion ***. The term itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an `abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but the defiance thereof, not the exercise of reason but rather of passion or bias. ***. Furthermore, as part of a trial court's determination regarding the division of marital property, a trial court may in equity require valuation of the marital assets on the date of the de facto termination of the marriage. Cherry v. Cherry (1981), 66 Ohio St.2d 348. "The determination as to when to apply a valuation date other than the actual date of divorce is within the discretion of the trial court and cannot be disturbed on appeal absent a demonstration of an abuse of discretion." Gullia v. Gullia (1994) 93 Ohio App.3d 653, 666. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ITS DIVISION OF MARITAL PROPERTY. The equitable division of marital and separate property is governed by R.C. 3105.171 which states in pertinent part: (B) In divorce proceedings, the court shall, ***, determine what constitutes marital property and what constitutes separate property. In either, upon making such a -7- determination, the court shall divide the marital and separate property equitably between the spouses, in accordance with this section. ***. R.C. 3105.171 (A)(3)(a) then defines marital property as various assets acquired "during the marriage," a phrase which is, in turn, defined in R.C. 3105.171 (A)(2): (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 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. Initially, we first must address defendant-appellee's claim that the issue of a de facto termination date is not subject to appellate review since plaintiff-appellant failed to object to the court's ruling. In the case sub judice, there is no dispute plaintiff-appellant did not object to or argue against the trial court's termination date of the marriage for purposes of valuating marital property. In fact, plaintiff-appellant's trial brief refers to property acquired after the date of separation as marital assets, i.e., law firm capital. It is well established that an appellate court will not consider issues which the appellant failed to raise in the trial court. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41; -8- Cleveland v. Assn. of Cleveland Fire Fighters, Local 93, Internatl. Assn. of Fire Fighters (1991), 73 Ohio App.3d 220. Accordingly, plaintiff-appellant's assigned error concerning the date of termination for purposes of "marital property" lacks merit. Regarding plaintiff-appellant's claim that defendant-appellee confiscated approximately $50,000 in securities and an additional $7,000 of marital funds in violation of the trial court's restraining order, we note the trial court did in fact recognize the $48,844 in securities as not being separate property of defendant-appellee but rather constituting marital property 1 subject to equitable division by the court. Additionally, from a review of the judgment entry granting divorce, we find the trial court considered the factors listed in R.C. 3105.18 in arriving at its decision. For these reasons, we cannot find the trial court abused its discretion in assessing the value and scope of the parties marital property. Plaintiff- appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENTS OF ERROR Donald M. Robiner's, plaintiff-appellant's, second assignment of error states: II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN REQUIRING WITHOUT JUSTIFICATION THAT APPELLANT MAINTAIN APPELLEE AS AN 1 Plaintiff-appellant's claim regarding defendant- appellee's violation of the restraining order will be addressed with the fourth assignment of error. -9- IRREVOCABLE BENEFICIARY ON APPELLANT'S LIFE INSURANCE POLICY. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN REQUIRING PLAINTIFF-APPELLEE TO BE A BENEFICIARY OF PLAINTIFF-APPELLANT'S LIFE INSURANCE POLICY. Defendant-appellant argues the trial court abused its discretion in requiring him to maintain plaintiff-appellee as an irrevocable beneficiary on his life insurance policy. Specifically, defendant-appellant argues the award is contrary to R.C. 3105.18 since it entitles defendant-appellee to the proceeds of his life insurance policy after plaintiff-appellant has died. Defendant-appellant's second assignment of error is well taken. B. STANDARD OF REVIEW: SPOUSAL SUPPORT PAYMENTS. In Ohio, alimony consists of two components: a division of marital assets and liabilities, and periodic payments of sustenance and support. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93. The trial court is given broad discretion in determining the appropriate spousal support based upon the particular facts and circumstances of each case, and such determination will not be disturbed by this court absent an affirmative showing that the trial court abused its discretion. Cherry v. Cherry (1981), 66 Ohio St.2d 348; Pendleton v. Pendleton (1989), 65 Ohio App.3d 763. C. THE TRIAL COURT ABUSED ITS DISCRETION IN REQUIRING DEFENDANT- APPELLEE TO MAINTAIN PLAINTIFF-APPELLEE AS IRREVOCABLE BENEFICIARY. -10- In the case sub judice, plaintiff-appellant argues the trial court erred in requiring him to maintain defendant-appellee as an irrevocable beneficiary of his life insurance policy when it stated: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff shall maintain the Defendant as an irrevocable beneficiary on one or more policy(s) of life insurance on his life in an amount equal to one-third (1/3) of the face value of all insurance policies he retains in effect on his life, or $150,000, whichever amount is greater, for so long as he is obligated to pay spousal support hereunder, and the Plaintiff or his estate shall indemnify and hold the Defendant harmless from and against any loss or liability resulting from his failure to do the same. ***. Defendant-appellant argues this award is in direct conflict with R.C. 3105.18(B) which terminates any award of spousal support upon the death of either party unless the order containing the award expressly provides otherwise. While we acknowledge the conflicting authority regarding this issue (even within this court), we agree with plaintiff-appellant that our holding in McCoy v. McCoy (1993), 91 Ohio App.3d 570 is controlling. See, also, Keating v. Keating (June 17, 1993), Cuyahoga App. Nos. 63885 and 64943, unreported. In McCoy, we found security in the form of life insurance is inappropriate for spousal support payments. This is due to the language of R.C. 3105.18(B) which terminates spousal support upon the death of either party unless the award provides otherwise. McCoy, supra, at 582. Furthermore, by requiring plaintiff- -11- appellant to maintain defendant-appellee as a beneficiary, the trial court is not necessarily securing payment of plaintiff- appellant's spousal support obligations and is, in effect, providing defendant-appellee with a spousal support award after the death of plaintiff-appellant. See, Addy v. Addy (1994), 97 Ohio App.3d 204. For these reasons, the trial court abused its discretion regarding the insurance provision of the spousal support award. We vacate that portion of the divorce decree requiring him to maintain defendant-appellant as an irrevocable beneficiary of his life insurance policy or policies. Plaintiff-appellant's second assignment is well taken. IV. THIRD AND EIGHTH ASSIGNMENTS OF ERROR As Donald M. Robiner's, plaintiff-appellant's, third and eighth assignments of error contain similar issues of law and fact, we will consider them concurrently: III. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN ISSUING A SPOUSAL SUPPORT ORDER WHICH PURPORTED TO GRANT APPELLEE AUTOMATIC FUTURE INCREASES BASED SOLELY UPON A PERCENTAGE OF APPELLANT'S FUTURE INCOME, WITHOUT REGARD TO WHAT THE STATUS OF APPELLEE'S NEEDS AND OTHER STATUTORY FACTORS MAY BE IN THE FUTURE. VIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN BASING ITS ERRONEOUS SPOUSAL SUPPORT ORDER ON PURE SPECULATION, RATHER THAN UPON THE NEEDS OF THE APPELLEE, THE APPELLANT'S ABILITY TO PAY AND/OR ANY OF THE REQUIRED STATUTORY FACTORS, INCLUDING APPELLEE'S EARNING CAPACITY. -12- A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION REGARDING THE SPOUSAL SUPPORT AWARD. Plaintiff-appellant argues the trial court abused its discretion in calculating the spousal support award. Specifically, plaintiff-appellant argues the trial court abused its discretion for the following reasons: 1) by creating a mechanism within the spousal support award providing defendant- appellee with future increases in spousal support without the need of filing a motion to modify or a hearing on the relevant factors, and 2) by considering and/or fixating upon the disparity between the parties' income tax returns as opposed to considering all of the statutory factors set forth in R.C. 3105.18. Plaintiff-appellant's eighth assignments of error is not well taken. Plaintiff-appellant's third assignment of error is well taken. B. STANDARD OF REVIEW: SPOUSAL SUPPORT. In Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, the Ohio State Supreme Court summarized the standard of review utilized by a reviewing court regarding a trial court's sustenance award: 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. 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 limited. 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. As we noted in -13- Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142, 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. (Other citations omitted). With these principles in mind, we address plaintiff- appellant's third and eighth assignments of error. C. THE TRIAL COURT ABUSED ITS DISCRETION IN CALCULATING THE SPOUSAL SUPPORT AWARD IN PART. The trial court concluded plaintiff-appellant's income to be $88,000 per year ($100,000 annual allotment per year minus $12,000 business expense reimbursement) and defendant-appellee's income to be $11,230 per year. The trial court found that defendant-appellee was unable to meet her 1993 living expenses in the amount of $3,418 per month, nor would she be able to meet her projected 1994 expenses in the amount of $4,359 per month solely on her income. Thus, the court awarded defendant-appellee what it deemed an appropriate and reasonable spousal support award of $2,250 per month. The court further found that if and when plaintiff-appellant receives additional employment income in excess of his present allotment of $100,000 per year, then defendant-appellee should be entitled to 30% of that amount as additional spousal support award. The court however, limited the total amount of spousal support received by defendant-appellee under this formula to $40,000 per year. -14- Plaintiff-appellant argues that the trial court's spousal support award constitutes an abuse of discretion. Plaintiff- appellant begins by attacking the 1994 projected expense figure of $4,359 as speculative, contrary to the manifest weight of the evidence and one that maintains the high standard of living enjoyed by defendant-appellee during the marriage rather than addressing the dependent spouse's needs. We disagree. In late 1992, defendant-appellee anticipated her 1993 monthly expenses at $4,357. The defendant-appellee subsequently testified that her actual monthly expenditures in 1993 totaled $3,418. However, these expenses did not include medical insurance payments, medical expenses (psychological and physical therapy) and writing workshop expenses defendant-appellee incurred. Taking these factors into account, we are unable to conclude that the projected 1994 expense is contrary to the manifest weight of the evidence. Furthermore, there is nothing in the record which establishes the trial court based its spousal support award upon a "high standard of living" as opposed to defendant-appellee's needs. Unlike the situation in Simoni v. Simoni (March 25, 1995), Cuyahoga App. No. 66995, unreported, a case cited by plaintiff- appellant, both parties were not found to maintain substantial income, i.e., $60,000. Nor did the trial court in the case sub judice find that a spouse was entitled as a matter of law to "a continuous luxurious life style" and then fashion its own "need" -15- for the spouse in excess of what was actually thought necessary by that party. Rather, the record established the trial court found defendant-appellee's annual income to be $11,230. Contrary to plaintiff-appellant's assertions, the court then considering all the factors set forth in R.C. 3105.18 and defendant-appellee's 1994 projected expenses, the court determined a spousal support award of $2,250 per month to be reasonable and appropriate under the circumstances. From a review of the record, we cannot hold the trial court based its decision upon a high standard of living as opposed to what it believed to be the reasonable needs of defendant-appellee. See Stone v. Stone (1954), 98 Ohio App. 240. Regarding plaintiff-appellant's claim that a future sustenance award based upon a percentage of his income is contrary to law, we agree with plaintiff-appellant that the rule as set forth in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64 is controlling. In that case the trial court mandated appellant- husband to pay "*** [annual] support alimony a sum equal to thirty-three and one third percent (33-1/3%) of the payor's gross earned income *** less payor's FICA payments". Id. at 69. The court held that by awarding such support, the trial court was merely speculating as to what the appellee-wife's needs will be in the future. Id. at 71. The court concluded that a spousal support award requiring the payor to pay alimony based upon a -16- percentage of the payor's income and which is not based upon the payee's need is improper. Id. As applied to this case, we hold the portion of the spousal support award providing for an additional 30% of any income plaintiff-appellant receives above $100,000 constitutes reversible error. Similar to the award in Kunkle, this portion of the spousal support award is speculative as to the needs of defendant-appellee and deprives the trial court the opportunity to determine if a change in the parties circumstances would require a modification in the spousal support award. In sum, we hold the trial court did not abuse its discretion in determining defendant-appellee's 1994 projected expenses to be $4,357. We also find from a review of the record that in making its spousal support award, the trial court properly considered the factors set forth in R.C. 3105.18 including plaintiff- appellant's ability to pay. Accordingly, plaintiff-appellant's eighth assignment of error is not well taken. However, the trial court committed reversible error in awarding an additional 30% of any income plaintiff-appellant receives in the future above $100,000. This portion of the alimony award is therefore vacated. Plaintiff-appellant's third assignment of error is well taken. V. FOURTH AND FIFTH ASSIGNMENTS OF ERROR As Donald M. Robiner's, plaintiff-appellant's, fourth and fifth assignments of error contain similar issues of law and fact, we will consider them concurrently: -17- IV. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN FAILING TO CREDIT APPELLEE WITH HAVING PREVIOUSLY RECEIVED APPROXIMATELY $7,000 IN MARITAL ASSETS, IN LIGHT OF THE TRIAL COURT'S FINDING THAT APPELLEE SPENT SAID MARITAL FUNDS DURING THE PENDENCY OF THIS CASE, "IN APPARENT VIOLATION OF A RESTRAINING ORDER." V. THE TRIAL COURT'S FINDING OF A $7,100 TEMPORARY SUPPORT ARREARAGE IS WITHOUT EVIDENTIARY SUPPORT AND CONSTITUTES AN ABUSE OF DISCRETION. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN MAKING THE SPOUSAL SUPPORT AWARD. Plaintiff-appellant argues the trial court committed reversible error in finding he was not entitled to any reimbursement of approximately $7,000 the wife had spent in violation of a restraining order. The trial court reasoned that the amount was offset by: 1) plaintiff-appellant's failure to pay temporary support payments between February 22, 1991 and October 7, 1992 and 2) additional income received by plaintiff-appellant in the form of bonuses and loans during the pendency of the case. Plaintiff-appellant argues: 1) that he was not obligated to pay spousal support until December 5, 1991, and 2) that the court had already ordered plaintiff-appellant to pay an additional $7,100 for alleged temporary support arrearage. Moreover, plaintiff-appellant argues the trial court's determination that he was $7,100 in temporary support arrearages is unsupported by the evidence and constitutes an abuse of discretion. -18- Plaintiff-appellant's fourth and fifth assignments of error are not well taken. B. STANDARD OF REVIEW: ABUSE OF DISCRETION. As previously stated, when reviewing an award of spousal support, 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. Kunkle, supra. 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. Blakemore, supra. -19- C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FAILING TO REIMBURSE PLAINTIFF-APPELLANT APPROXIMATELY $7,000 AND IN FINDING PLAINTIFF-APPELLANT OWED $7,100 IN TEMPORARY SPOUSAL SUPPORT ARREARAGES. In the case sub judice, the trial court's judgment entry included the following: The court further finds that the Defendant spent $7,000 in marital funds from the Fidelity account, in apparant (sic) violation of a restraining order, during the pendency of this action. However, the Court further finds that the Plaintiff is not entitled to any reimbursement or credit therefore as a result of his failure to provide the Defendant with any temporary spousal support between February 22, 1991 and October 7, 1992, and furthermore because the plaintiff received additional income in the form of bonuses and loans, during the pendency of this case, which far exceed the Defendant's withdrawal from the Fidelity account, and for which the Plaintiff has not completely accounted. Additionally, the trial court also made the following award: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall pay to the Defendant the sum of $7,100.00, as and for the arrearage due to the temporary award of spousal support, which sum shall be paid in lump sum from the Plaintiff's one-half (1/2) share of the net proceeds received from the sale of the marital home, or as part of the Plaintiff's buy out of the Defendant's interest therein. The original motion for temporary spousal support was filed February 22, 1991. A temporary award was issued on December 5, 1991 but was later vacated. The parties subsequently agreed to a temporary support order for $1,600 per month beginning on September 8, 1992. Included in this award was the agreement that defendant-appellee would not be prejudiced in claiming her right -20- that temporary spousal support apply retroactively to February 22, 1991. After a review of the record, we find there was sufficient credible evidence in the record supporting the trial court's conclusion that defendant-appellee was in need of the temporary spousal support on February 22, 1991. Since it was undisputed plaintiff-appellant paid temporary spousal support beginning on December 5, 1992, the trial court correctly concluded plaintiff-appellant to be in temporary spousal support arrears in the amount of $7,100 (19 months x $1,600 minus $23,000 paid by plaintiff-appellant). If plaintiff-appellant claims he had made payments exceeding $23,000, it is his duty to establish that fact. See, e.g., Hutson v. Hutson (1954), 68 Ohio Law Abs. 131. In this case, plaintiff-appellant has failed to introduce such evidence. With regard to the $7,000 in funds spent by defendant-appellee, we note that while the temporary spousal support arrearage was given as a reason for not awarding a $7,000 credit to plaintiff-appellant, it was not the sole reason for the trial court's decision. It is undisputed that plaintiff- appellant received additional income in the form of bonuses and loans during the pendency of the case which exceeded $7,000. Since the bonuses and loans were received prior to the termination date of the marriage and was awarded to plaintiff- appellant, we do not believe the trial court's decision constitutes an abuse of discretion. Accordingly, we find the trial court did not abuse its discretion in: 1) ordering plaintiff-appellant to pay to -21- defendant-appellee the sum of $7,100 for the arrearage due on the temporary award of spousal support and 2) offsetting $7,000 spent by defendant-appellee with additional income received by plaintiff-appellant. Plaintiff-appellant's fourth and fifth assignments of error are not well taken. VI. SIXTH ASSIGNMENT OF ERROR Donald M. Robiner, plaintiff-appellant, states as his sixth assignment of error: VI. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN IMPOSING A LIFETIME SPOUSAL SUPPORT OBLIGATION UPON APPELLANT AND THEN ARBITRARILY LIMITING THE BASES UPON WHICH SAID OBLIGATION MAY BE SUBJECT TO MODIFICATION AT SOME FUTURE DATE. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN LIMITING THE BASES FOR MODIFICATION. Plaintiff-appellant argues the trial court abused its discretion by reserving jurisdiction for modification of the spousal support order for only a number of specific reasons instead of reserving jurisdiction to modify spousal support for any reason recognized in law. Plaintiff-appellant's sixth assignment of error is well taken. B. STANDARD OF REVIEW: CONTINUING JURISDICTION FOR FUTURE MODIFICATION. In Gullia v. Gullia (1994), 93 Ohio App.3d 653, 660, we summarized the standard of review applicable to reserving jurisdiction: Prior to the amendment of R.C. 3105.18 in 1986, a trial court's continuing jurisdiction to modify an indefinite sustenance alimony -22- award was implied in the parties' divorce decree. In 1986, the Ohio General Assembly amended R.C. 3105.18, requiring the domestic relations court to specifically reserve jurisdiction in order to subsequently modify a sustenance alimony award. R.C. 3105.18(D)(1). Since the 1986 amendment, it has been held that a trial court abuses its discretion by failing to reserve jurisdiction to modify an indefinite award of alimony. C. THE TRIAL COURT ABUSED ITS DISCRETION IN RESTRICTING ITS JURISDICTION TO MODIFY THE INDEFINITE SUSTENANCE AWARD. In the case sub judice, the trial court reserved jurisdiction to modify the indefinite spousal support award if and when any of the following events occur: 1) the defendant receives a significant gift(s) or a substantial inheritance from her mother; 2) the defendant attains the age of 62 years and the plaintiff is receiving Social Security benefits; and 3) the plaintiff becomes permanently and totally disabled and is unable to work. We have recently held since the decision to retain jurisdiction to modify is within the trial court's discretion, it is within the trial court's discretion to set forth conditions under which spousal support may be modified. Vergon v. Vergon (July 25, 1995), Cuyahoga App. No. 67325, unreported. However, in that case the trial court additionally reserved jurisdiction "in the event of a significant change of circumstances that cannot be foreseen or anticipated." Additionally, the sustenance award in that case was not indefinite in nature. Conversely, when a sustenance award is indefinite in length, as is the case in this instance, we have held a trial court abuses its discretion in failing to reserve jurisdiction to -23- modify. See Gullia, supra; Shannon v. Shannon (January 28, 1993), Cuyahoga App. No. 61714, unreported; Nori v. Nori (1989), 58 Ohio App.3d 69. Accordingly, the trial court has abused its discretion by placing such restrictions on its ability to retain jurisdiction to modify the indefinite spousal support award. See R.C. 3105.18(F). Plaintiff-appellant's sixth assignment of error is well taken. VII. SEVENTH ASSIGNMENT OF ERROR Donald M. Robiner's, plaintiff-appellant's, seventh assignment of error states: VII. THE TRIAL COURT'S FINDINGS THAT APPELLEE'S ALLEGED ATTORNEY FEES OF $77,000 WERE REASONABLE AND NECESSARY AND THE RESULTING ORDER THAT APPELLANT PAY $46,000 IN ATTORNEY FEES IS ARBITRARY, UNREASONABLE, UNCONSCIONABLE, CONTRARY TO LAW, CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE AND UNSUPPORTED BY EITHER THE RECORD OR BY THE TRIAL COURT'S OWN FINDINGS. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY FEES. Plaintiff-appellant argues the trial court abused its discretion in awarding attorney fees. Specifically, plaintiff- appellant argues the trial court's decision is not based on the manifest weight of the evidence since: 1) the amount charged per hour is unreasonable considering one attorney's experience, 2) the facts and circumstances surrounding this case are not difficult and/or complex, 3) many of the legal responses plaintiff-appellant used were compelled by defendant-appellee's -24- counsel's aggressive nature and 4) many of opposing counsels' tactics were unwarranted and unnecessary. Plaintiff-appellant's seventh assignment of error is not well taken. B. STANDARD OF REVIEW: ABUSE OF DISCRETION. The Ohio Supreme Court, in Gage v. Gage (1956), 165 Ohio St. 462, has stated that an award of alimony may include an allowance for reasonable attorney fees. A decision to award or not to award attorney fees should not be interfered with absent a clear showing of abuse of discretion by the trial court. Kunkle, supra; Swanson v. Swanson (1976), 48 Ohio App.2d 85. A trial court's decision to award or not to award attorney fees should take into consideration the factors of R.C. 3105.18, specifically the earning abilities of the parties of the relative assets and liabilities of each. Birath v. Birath (1988), 53 Ohio App.3d 31. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING ATTORNEY FEES. In this case, the trial court found defendant-appellee's and plaintiff-appellant's legal fees totaled $77,654 and $40,761 respectively. From a review of the transcripts, we find sufficient evidence supporting the trial court's conclusion that said fees were reasonable and necessary. Moreover, sufficient evidence was present establishing plaintiff-appellant's ability to pay the portion of the trial court's award. R.C. 3105.18(H). As such, we cannot hold the trial court abused its discretion. -25- Plaintiff-appellant's seventh assignment of error is not well taken. VIII. NINTH ASSIGNMENT OF ERROR Donald M. Robiner, plaintiff-appellant, states as his ninth assignment of error: IX. THE TRIAL COURT'S PROPERTY DIVISION AND SPOUSAL SUPPORT ORDERS CONSTITUTE AN ABUSE OF DISCRETION AND REVERSIBLE ERROR IN LIGHT OF THE FACT THAT THE DIVORCE DECREE ALSO IMPOSED UPON APPELLANT THE SOLE RESPONSIBILITY FOR DEBTS AND ATTORNEY FEES OF APPROXIMATELY $280,000. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DIVIDING PROPERTY AND ALLOCATING MARITAL DEBT. Plaintiff-appellant argues the trial court abused its discretion in dividing the marital property and in awarding spousal support. Specifically, plaintiff-appellant argues the uncontroverted evidence demonstrates the trial court's division of marital debt was disproportionate. Plaintiff-appellant argues the disproportionate allocation of marital debt along with the spousal support and attorney fee award leaves him with virtually no marital assets. Taken together, the trial court's allocation of property and obligations is arbitrary, unreasonably skewed and constitutes an abuse of discretion. Plaintiff-appellant's ninth assignment of error is well taken in part. B. STANDARD OF REVIEW: ABUSE OF DISCRETION. -26- As previously stated, a trial court is vested with broad discretion when fashioning its division of marital property. Bisker, supra. R.C. 3105.171 provides the division of marital property to be equal unless this would prove inequitable. See, also, Cherry, supra. In making its decision, the trial court is guided by the factors set forth in R.C. 3105.171(F). A reviewing court will not substitute its judgment for that of the trial court unless the trial court's decision is unreasonable, arbitrary or unconscionable. Gullia, supra. C. THE TRIAL COURT ABUSED ITS DISCRETION IN PART IN ALLOCATING THE PARTIES' MARITAL DEBT AND DIVIDING THE MARITAL ESTATE. After a complete review of the record, we find there exists sufficient evidence supporting the trial court's determination that plaintiff-appellant maintains a debt of $153,345 (monies owed to former law firm). The evidence also supports the trial court's finding that plaintiff-appellee is owed approximately $220,000 from the former law firm for acts performed during the marriage (deferred compensation package and buy-out plan). Moreover, it is undisputed that neither plaintiff-appellant nor his former law firm have initiated legal action in order to assert their respective claims. Not only does the record demonstrate the trial court considered all the relevant factors set forth in R.C. 3105.171, but we find when considering the totality of the circumstances, the trial court's determination that there exists an equitable -27- offset regarding the above-mentioned figures does not constitute 2 an abuse of discretion. However, a review of the record establishes an error in the trial court's subsequent calculation of marital debt. Contrary to the trial court's determination, the loans incurred by defendant-appellee for living expenses do not constitute marital debt, i.e., $13,158. Rather, the testimony of defendant-appellee and her mother indicate these sums of money were gifts made from mother to daughter intended to be used solely by the daughter with no obligation of repayment. See R.C. 3105.171(A)(6)(vii). We therefore reopen the divorce decree and remand back to the trial court for the limited purpose of recalculation and allocation of marital debt. Plaintiff-appellant's ninth assignment of error is well taken in part. IX. TENTH ASSIGNMENT OF ERROR Donald M. Robiner's, plaintiff-appellant's, tenth assignment of error states: X. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN OVERRULING APPELLANT'S MOTION FOR A NEW TRIAL AND IN AWARDING APPELLEE ADDITIONAL ATTORNEY FEES. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A NEW TRIAL AND IN AWARDING ADDITIONAL ATTORNEY FEES. Plaintiff-appellant argues the trial court committed reversible error in overruling his motion for a new trial. 2 If anything, the trial court's determination concerning this offset would be advantageous to plaintiff-appellant. -28- Plaintiff-appellant argues the trial court's failure to consider the costs and tax implications of compliance with its spousal support award in contravention of R.C. 3105.171 and 3105.18, as well the plaintiff-appellant's previously assigned errors, demonstrates an abuse of discretion by the trial court. Plaintiff-appellant also argues the trial court abused its discretion in awarding defendant-appellee an additional $2,500 in attorney fees without hearing and/or considering the post-trial evidence as to the reasonableness or necessity of those fees. B. STANDARD OF REVIEW: MOTION FOR A NEW TRIAL. The granting of a motion for a new trial pursuant to Civ.R. 59 rests within the sound discretion of the trial court and the ruling will not be reversed upon appeal unless there is an abuse of discretion. Verbon v. Pennese (1982), 7 Ohio App.3d 182. Further, in reviewing a trial court's ruling on a motion for a new trial, an appellate court should view the evidence favorably to the trial court's action where the trial court's decision involves questions of fact. Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249; Ellis v. Jackson (June 9, 1994), Cuyahoga App. No. 65661, unreported. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR A NEW TRIAL OR IN ITS AWARD OF ATTORNEY FEES. In the case sub judice, plaintiff-appellant based his motion for a new trial on the grounds: 1) the judgment is contrary to law in significant respects, and 2) the judgment is not sustained by the weight of the evidence. One of plaintiff-appellant's -29- arguments concerned the trial court's formula awarding defendant- appellee a percentage of his future income. However, this court has previously vacated that portion of the trial court's judgment entry. (See third assignment of error). We therefore consider this argument moot for purposes of this opinion. App.R. 12(A)(1)(c). Regarding plaintiff-appellant's remaining argument that the trial court failed to consider tax consequences of its respective awards, we note plaintiff-appellant has failed to include the transcript of the proceedings on said motion. As such, we must presume validity to the trial court's action and find plaintiff- appellant has failed to demonstrate an abuse of discretion. Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313. With regard to plaintiff-appellant's claim concerning the award of attorney fees, we note R.C. 3105.18(H) authorizes a court to award attorney fees to either party at any stage of the proceedings. Again, failure of plaintiff-appellant to provide the transcript of said proceedings compels this court to find validity in the trial court's action. Plaintiff-appellant's tenth assignment of error is not well taken. X. FIRST AND SECOND CROSS-ASSIGNMENTS OF ERROR As Linda G. Robiner's, defendant-appellee's, first and second cross-assignments of error contain similar issues of law and fact and fall under the same standard of review, we will consider them concurrently: -30- I. THE TRIAL COURT'S FINDING THAT THE $48,844 IN SECURITIES GIVEN TO APPELLEE BY HER MOTHER IS MARITAL PROPERTY AND NOT APPELLEE'S SEPARATE PROPERTY, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AN ABUSE OF DISCRETION, AND CONTRARY TO LAW. II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT FINDING THAT APPELLANT HAD SECRETED $153,645 FROM THE MARITAL ESTATE. A. ISSUE RAISED: WHETHER THE TRIAL COURT'S DIVISION OF MARITAL PROPERTY CONSTITUTES AN ABUSE OF DISCRETION. In defendant-appellee's first cross-assignment of error she argues the trial court abused its discretion in finding the securities given by her mother constitute marital property. Specifically, defendant-appellee argues the deposition of her mother clearly establishes the intent of her mother was to give the securities solely to defendant-appellee as a gift. In defendant-appellee's second cross-assignment of error she argues the trial court failed to consider approximately $153,645 in funds plaintiff-appellant accumulated in 1991-1992 in fashioning its spousal support award. This court action, defendant-appellee argues, is not only unequitable, but also violates R.C. 3105.18 which compels a court to consider all sources of income when fashioning a spousal support award. Defendant-appellee's first and second cross-assignments of error are not well taken. B. STANDARD OF REVIEW: DIVISION OF MARITAL PROPERTY. The division of marital property begins with the designation of property as either marital or separate. See R.C. 3105.171. -31- As previously stated, a trial court is vested with broad discretion when fashioning its division of marital property. A reviewing court will not substitute its judgment for that of the trial court unless the trial court's decision is unreasonable, arbitrary or unconscionable. Bisker, supra. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DETERMINING WHAT CONSTITUTES MARITAL PROPERTY. With regard to defendant-appellee's first cross-assignment of error, the trial court found $48,844 in securities defendant- appellee received from her mother constituted marital assets. Defendant-appellee argues the deposition of her mother clearly established the securities were meant by her mother to be a gift, thus separate property. We disagree. In this case, there is conflicting testimony as to the approximate date which the mother began transferring the securities at issue. However, it is clear the transfer date began while the parties were still legally married. Furthermore, there is evidence in the record which establishes the mother understood the securities were to be used by both parties in the paying off of certain marital debts including, but not limited, to the costs of their childrens' education. It is well established a trial court's finding based upon substantial, credible evidence will not be disturbed on appeal. The C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Keeping in mind that it is primarily the function of the trier of fact to determine evidence and the credibility of -32- witnesses, State v. DeHass (1967), 10 Ohio St.2d 230, we find defendant-appellee has failed to demonstrate the trial court abused its discretion. Defendant-appellee's first cross- assignment of error is not well taken. In defendant-appellee's second cross-assignment of error, she argues the trial court failed to consider certain sums of income received by plaintiff-appellee. Again, we disagree. The $92,145 plaintiff-appellee received from clients of his former law firm was properly held to constitute a personal debt which the trial court considered as part of the equitable offset discussed in plaintiff-appellant's ninth assignment of error. Furthermore, the record establishes plaintiff-appellant's salary and bonus totaling $125,000 was in fact considered by the trial court in its determination of spousal support. Defendant-appellee also argued plaintiff-appellee received $16,500 in December of 1992. However, the record fails to substantiate this claim. For these reasons, we find defendant- appellee has failed to demonstrate an abuse of discretion by the trial court. Defendant-appellee's second cross-assignment of error is not well taken. XI. THIRD CROSS-ASSIGNMENT OF ERROR Linda G. Robiner, defendant-appellee, states as her third cross-assignment of error: III. THE TRIAL COURT ABUSED ITS DISCRETION IN ONLY AWARDING APPELLEE $1,600 PER MONTH IN INTERIM SPOUSAL SUPPORT AND $2,250 PER MONTH IN SPOUSAL SUPPORT UPON THE DIVORCE. -33- -34- A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN MAKING ITS SPOUSAL SUPPORT AWARD. Defendant-appellee argues the trial court abused its discretion in computing the spousal support award. Specifically, defendant-appellee argues the trial court abused its discretion in setting the interim spousal support award at $1,600 per month and in awarding only $2,250 per month in spousal support. Defendant-appellee's third cross-assignment of error is not well taken. B. STANDARD OF REVIEW: SPOUSAL SUPPORT AWARD. As previously stated, when reviewing an award of spousal support, 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. Kunkle, supra. 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. Blakemore, supra. C. THE TRIAL COURT ABUSED ITS DISCRETION IN PART IN MAKING ITS SPOUSAL SUPPORT AWARD. After a review of the record and for the reasons set forth herein, we find there exists substantial credible evidence supporting the trial court award of temporary spousal support in the amount of $1,600 per month and the court's award of $2,250 per month. Further, in making the spousal support awards, the record reflects the trial court did in fact consider the factors set forth in R.C. 3105.18. Thus, defendant-appellee has failed -35- to establish an abuse of discretion. The third cross-assignment of error is not well taken. Judgment affirmed in part, reversed in part and remanded to the trial court for further proceedings consistent with this opinion. -36- This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant and said appellee share the 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. PORTER, J. and NAHRA, J., CONCUR. DAVID T. MATIA PRESIDING 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 .