COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67270 : ANGEL ANDRADES : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ROSA ANDRADES : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from the Domestic Relations Division of the Common Pleas Court Case No. D-216016 JUDGMENT: Affirmed DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: RUSSELL Z. BARON, ESQ. MARY V.G. WALSH, ESQ. Ticktin, Baron, Koepper & Co. 459 The Arcade 1700 Keith Building Cleveland, Ohio 44114 Cleveland, Ohio 44115 - 2 - JAMES M. PORTER, J.: Defendant-appellant Rosa Andrades appeals from the divorce decree of the Domestic Relations Division of the Common Pleas Court insofar as it determines that $15,000 on account with Third Federal Savings & Loan is marital property and insofar as it denies spousal support or attorney fees to defendant. We find no error in the division of marital property nor in the denial of spousal support or attorney fees. We affirm for the reasons hereinafter stated. This matter came on for hearing by reference to the Trial Referee on September 30 and October 1, 1993. The parties entered into two sets of written stipulations of record and the trial exhibits were admitted without objection. The evidence revealed that the parties were married for eighteen years. Two children were born of the marriage: Sofia (d.o.b. 1/18/75) and Jose (d.o.b. 7/2/79). Sofia is emancipated at age 18 and continues to live with the plaintiff-appellee Angel Andrades, his father, in the marital residence. Jose, age 15 also lives with her father. The parties stipulated that the plaintiff shall be residential parent and custodian of Jose. Plaintiff is 50 years old and defendant is 44. Plaintiff has enjoyed steady employment and earns $36,000 per year; the defendant is likewise employed and earns $26,000 per year. The referee recommended an equal division of the marital property as follows: - 3 - PLAINTIFF DEFENDANT Credit Union Account $26,706.00 $25,515 Balance of Third Home Federal Account Equity 7,288.00 13,832 IRAs Society Bank Portion of Third Federal Account 1,739.00 10,000 Credit for funds previously released Credit for liquidated IRAs 6,114.00 Credit for funds previously released 7,400.00 $49,247.00 $49,247.00 The parties also owned residential property in Cleveland and Puerto Rico. Under the decree, defendant is entitled to receive $32,000 from the first proceeds of the sale of the real estate located in Puerto Rico. The plaintiff would retain the Cleveland marital residence with an equity of $7,288. The referee prepared and submitted her report to the parties on November 30, 1993. The report recommended that the disputed $15,000 account at Third Federal be treated as marital property to be equally divided, not the separate property of the defendant and that the defendant not be awarded any spousal support or attorney's fees. Defendant filed objections to the report and the recommendations which were overruled by the court. The Journal Entry approving the referee's recommendations was entered on April 12, 1994. This timely appeal ensued. We will consider defendant's assignments of error in the order asserted. - 4 - I. THE TRIAL COURT ERRED IN FINDING THAT THE SUM OF $15,000 WAS MARITAL PROPERTY RATHER THAN SEPARATE PROPERTY OF THE APPELLANT. Defendant contended at trial that she was holding $15,000 in trust for her niece, Lillian Santiago. This money had, according to defendant, been given to her over a period of time by her mother who was Lillian's grandmother, now deceased. The money was to be used for repairs of the home also given to Lillian by the grandmother, but which was now occupied by Lillian's uncle and his family. This testimony was corroborated to varying degrees by Lillian herself and by Lillian's mother who is also defendant's sister, Milagros Jeminez. The grandmother had allegedly told Ms. Jeminez that she had given the $15,000 to defendant in trust for Lillian. However, other evidence disclosed that defendant did not keep records of those payments; she never told plaintiff about them; there was uncertainty as to when or how often they were made; that they were deposited in a joint account in Puerto Rico in plaintiff's and defendant's name; Lillian has never received title to the house to which the repairs were to be made; Lillian had turned 18 over four years before the trial, but had never asked for the money although her needs required it. The referee found that the $15,000 placed "in trust" with defendant did not fit any of the definitions of separate property set out in R.C. 3105.171(A)(6)(a) and was therefore not excludable separate property. Defendant argues that the $15,000 - 5 - could be considered under R.C. 3105.171(A)(6)(a)(viii) which states: Any gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse. However, to treat the $15,000 as a gift to Rosa would be contrary to her argument that the $15,000 was not a gift to her but to be held in trust for Lillian. The referee further failed to credit the testimony of defendant, Lillian and Lillian's mother stating: Further, the Referee finds the testimony of Defendant, her sister and her niece not to be persuasive. The weight and credibility of the testimony is necessarily affected by its self serving nature as well as by the relationship between the parties. Defendant, her sister and her niece testified variously that: Defendant's mother, Sofia Jimenez (hereinafter referred to as Grandmother) who died in 1991 purchased a home in 1981 for $30,000.00 cash and placed title in the name of her son Pablo as trustee for her grandaugher [sic], Lillian (then 8 years of age) who was eventually to receive the house as her own; that although Lillian is now 20 years old, her father, Pablo, still occupies the house while she does not live there and does not wish to take possession in the near future; that the home is not in the best condition and needs a lot of work; that the Grandmother was a diabetic, that she was widowed in 1984 and her only source of income was Social Security benefits; that despite this modest income, the Grandmother was able to accumulate in addition to the $30,000.00 cash for the house, another $15,000.00 cash which she gave over a period of time to Defendant to hold for Lillian; that Lillians' [sic] mother, Defendant's sister, only learned of this "trust" at the time of the Grandmother's death in 1991; and that, as - 6 - shown on Plaintiff's Exhibit 1, three separate deposits of $5,000.00 each were made to an account in Plaintiff's and Defendant's names in Puerto Rico, two in June, 1982 and one in April, 1983. Defendant testified that one of the checks came from the proceeds of the sale of a home owned by the Grandmother in Puerto Rico and that the other 2 came from monies given to Defendant by the Grandmother over time. The Referee finds the parties purchased a home in Puerto Rico in 1981 with intent to move there in the future; that the timing of the deposits was at least as consistent with this intent as with Defendant's explanation and that Plaintiff testified the monies were sent to avoid federal taxes. The Referee finds that Defendant has the burden of showing these funds are not marital and that Defendant has failed to establish that a total of $15,000.00 of otherwise joint marital assets of the parties is really being held in irrevocable trust for the benefit of another. As defendant points out, the transcript indicates that defendant's sister allegedly knew about the trust for her daughter several years before the grandmother's death, yet the referee's report states that she did not know until the grandmother's death. However, this does not constitute reversible error given the referee's other findings. This court must defer to the trial court as the finder of fact. A court of appeals is "guided by a presumption that the findings of the trier-of-fact were indeed correct." Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. The court's explanation for this ruling stated: "The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in - 7 - weighing the credibility of the proffered testimony. *** "'Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.'" (Citations omitted.) Id. at 80. With this limited scope of review in mind, we cannot say that the trial court's conclusions were against the manifest weight of the evidence. Assignment of Error I is overruled. II. THE COURT ABUSED ITS DISCRETION IN NOT AWARDING APPELLANT SPOUSAL SUPPORT AND ATTORNEY FEES. We find no abuse of discretion in the trial court's denial of spousal support and attorney's fees for defendant. The referee found as follows: Pursuant to O.R.C. 3105.18(B), the Referee finds Defendant has requested spousal support. The Referee finds Defendant is forty-four (44) years of age; that Plaintiff and Defendant are both high school graduates; that the marriage was 18 years in duration; that neither party contributed to the education, training or earning ability of the other; that Defendant's medical and emotional condition has suffered as a result of an assault on her in her home in September, 1991 by a [sic] unidentified assailant; that, notwithstanding this, Defendant has been able to continue working full time and has health care benefits through her employment; that Defendant has worked for 15 years for the U.S. Defense Logistics Agency and currently earns $26,000.00 per year; that Defendant has substantial liquid assets at her disposal; that Defendant has retirement benefits through her employer; that although plaintiff earns approximately $10,000.00 per year more - 8 - than Defendant he will have custody of the one minor child of the parties as well as be providing the home for the parties' emancipated child, Sofia, who attends college; that therefore an award of spousal support would not be appropriate in this case. Defendant has requested an award of attorney fees and submitted an itemized bill for $2,928.00. The Referee finds, for the reason set forth above, that Defendant has adequate income and sufficient liquid assets from which to pay her own attorney fees without need for contribution from the Plaintiff. The principles that guide our review of an award or denial of spousal support are set forth as follows in McCoy v. McCoy (1993), 91 Ohio App.3d 570, 579-80: "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, 95, 518 N.E.2d 1197, 1200. As part of a divorce proceeding, a trial court had equitable authority to divide and distribute the marital estate, and then consider whether an award of sustenance alimony would be appropriate. Holcomb v. Holcomb (1980), 44 Ohio St.3d 128, 541 N.E.2d 597; R.C. 3105.18(A). "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, 75 O.O.2d 474, 482, 350 N.E.2d 413, 423. 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, 20 O.O.3d 318, 322, 421 N.E.2d 1293, 1299. A reviewing court cannot substitute its judgment for that of the trial court unless, - 9 - considering the totality of the circumstances, the trial court abused its discretion. Holcomb, supra [44 Ohio St.3d], at 131, 541 N.E.2d at 599. As we noted in 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." Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E.2d 83, 86-87. The referee gave full consideration to the totality of the circumstances and the factors required by R.C. 3105.18 as set forth in her report quoted above. We cannot find that the court ignored the law or abused its discretion in denying spousal support in the circumstances presented. For the same reasons, we find no abuse of discretion in the denial of attorney's fees. An award of alimony may be made in the form of an allowance for reasonable attorney fees. Swanson v. Swanson (1976), 48 Ohio App.2d 85, 89, 2 O.O.3d 65, 68, 355 N.E.2d 894, 897. *** On appeal, the only questions for inquiry are whether the factual conclusions upon which the trial court based the exercise of its discretion were against the manifest weight of evidence, or whether there was an abuse of discretion. Id.; Oatey v. Oatey (1992), 83 Ohio App.3d 251, 263, 614 N.E.2d 1054, 1061; Birath v. Birath (1988), 53 Ohio App.3d 31, 39, 558 N.E.2d 63, 71. McCoy, supra. The trial court obviously found based on the particular circumstances of this case that it would not be equitable to impose a portion of defendant's attorney's fees on the plaintiff. We find no abuse of discretion in its judgment. Assignment of Error II is overruled. - 10 - Judgment affirmed. - 11 - It is ordered that appellee recover of appellant his 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 Domestic Relations Division of the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JAMES D. SWEENEY, P.J., and BLACKMON, J., CONCUR. JAMES M. PORTER 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 journalization, at which time it will become the judgment and .