COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67901 SUSAN GILL NELSON : : Appellee : : JOURNAL ENTRY -vs- : AND : OPINION LOU N. NIMYLOWYCZ : : Appellant : : DATE OF ANNOUNCEMENT OF DECISION JULY 13, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-216457 JUDGMENT Affirmed as modified. DATE OF JOURNALIZATION APPEARANCES: For Appellee: For Appellant: SUSAN BIRMINGHAM BROOKS, ESQ. DAVID J. HORVATH, ESQ. Brooks & Beebe Co., L.P.A. JOHN T. PRICE, ESQ. 19111 Detroit Road Cozza & Steuer Suite 306 1420 Standard Building Rocky River, Ohio 44116 1370 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Lou N. Nimylowycz, aka Nelson, appeals from the Domestic Relations Court's orders awarding spousal and child support and attorney fees to his ex-wife, plaintiff-appellee Susan Gill Nelson. Defendant claims the trial court failed to follow statutory procedures in making the awards and in imputing income to defendant which was not supported by the evidence. We find no error in the proceedings below and affirm and modify for the reasons hereinafter stated. The parties were married on June 11, 1976. Three children were born of their marriage, Robert James (d.o.b. 8/23/77), Michael Brendon (d.o.b. 1/1/80), and Amy Susan (d.o.b. 1/23/83). The father was given custody of the two sons; mother had custody of the daughter. The parties lived apart for a year prior to the divorce. During their sixteen year marriage, the parties acquired the jointly owned marital home at 26132 Defoe Drive, North Olmsted, Ohio. Defendant has pension benefits and retirement accounts from his employer Dean Witter in the total sum of $47,794.12. The parties owned an interest in a limited real estate partnership, two automobiles, household furniture and personal property. Their debts included a mortgage on the marital residence, car loans, credit card obligations and loans from defendant's parents. Defendant inherited $50,000, but claimed he spent it all on paying bills, including repaying a $30,000 loan from his parents. Defendant also borrowed money from his parents in 1990 and 1991 to - 3 - meet his mortgage and car payments. Defendant stopped paying household bills after February 1992. He lived in the marital home from the purchase to March 1992; he left for a year; returned in July 1993; and has lived there since. The marital home was ultimately sold at a sheriff's foreclosure sale to defendant's parents. The mortgage-holder was paid off. The balance of the sale proceeds is presently being held by the court pending the outcome of Common Pleas Case No. 251051, wherein defendant's parents are seeking repayment on two loans they allegedly advanced to their son. Plaintiff was a co-signer on one of those loans which was a subject of dispute below. The trial court herein found this debt was non-marital and plaintiff was not obliged therefor because she was forced by duress to sign the note. Prior to the trial of the divorce action, defendant filed suit against plaintiff in Common Pleas Court alleging slander as a result of a WVIZ-TV documentary highlighting issues of domestic violence. During the show, plaintiff, using a pseudonym, was one of several individuals who shared their personal experiences. That case is also pending. During these proceedings, plaintiff and her three children sought refuge in a women's shelter for victims of domestic violence from February 18 to May 10, 1992. She then returned to the marital home where she lived until the home was foreclosed upon in early 1993. A restraining order was issued to keep defendant out of the marital home from March 1992 to April 1993. He moved back in to - 4 - the home once plaintiff moved out. Plaintiff moved into an apartment with her daughter and never returned to the marital home. Defendant has resided with the two sons in the marital home, now owned by his parents, since July 1993. A two day divorce trial commenced on May 23, 1994. The parties and the Guardian Ad Litem testified. Plaintiff's sister, brother-in-law, father and neighbors also testified regarding issues of Amy's visitation; however, this is not an issue on appeal. The defendant discharged his counsel before trial and proceeded pro se. At the conclusion, the court made an equitable division of personal property; awarded plaintiff spousal support in the amount of $400 per month for six years; in determining spousal and child support, the trial court imputed income of $45,000 to defendant based upon his prior work history, his professional job skills, and his decision to take time away from his work to proceed pro se in the divorce action. Income tax returns from 1986-1990 were presented at trial. These indicated that in 1986 defendant earned $53,053; in 1987 he earned $59,826; in 1988 he earned $42,531; in 1989 he earned $22,883; and in 1990 he earned $46,849. Defendant failed to file an income tax return for the years 1991- 1993 making difficult the verification of his potential income. However, the assistant branch manager of Dean Witter testified from business records that defendant earned $44,177 in 1991; $31,365 in 1992; and $18,798 in 1993. - 5 - The trial court awarded plaintiff $15,000 in additional spousal support for attorney fees out of a total of incurred fees of $28,335. A timely appeal from the court's August 18, 1994 decree was filed by defendant. We will address the defendant's assignments of error in the order asserted. I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN AWARDING SPOUSAL SUPPORT WITHOUT ENUMERATING THE FACTS IT CONSIDERED AND FOUND PERTINENT UNDER REVISED CODE SECTION 3105.18(C), AS WELL AS IN MAKING AN AWARD OF SPOUSAL SUPPORT PRIOR TO MAKING AN APPROPRIATE DIVISION OF MARITAL PROPERTY. Defendant essentially claims that the court did not adequately set forth the basis for its award of spousal support of $400 per month for six years and was obliged to determine an equitable distribution of assets before determining whether spousal support was appropriate. The principles which guide our review in this matter were stated in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67: 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 has equitable authority to divide and distribute the marital estate, and then consider whether an award of sustenance alimony would be appropriate. Holcomb v. Holcomb (1989), 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. - 6 - 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, considering the totality of the circumstances, the trial court abused its discretion. Holcomb, supra 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. Accordingly, in this case we must examine the trial court's ruling under the totality of the circumstances and determine whether it acted unreasonably, arbitrarily, or unconscionably. Concerning an award of alimony, R.C. 3105.18(C) provides: (C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under Section 3105.17 [3105.17.1] of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; - 7 - (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) 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; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to, any party's contribution to the acquisition of a professional degree of the other party; * * * (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) any other factor that the court expressly finds to be relevant and equitable. (2) In determining whether spousal support is reasonable and in determining the amount and terms of payment of spousal support, each party shall be considered to have contributed equally to the production of marital income. Defendant argues that the trial court's decision failed to observe the requirement that "*** in making an award of sustenance - 8 - alimony, the trial court must indicate the basis for its award in sufficient detail to enable a reviewing court to determine that the award is fair, equitable and in accordance with law." Kaechle v. Kaechle (1988), 35 Ohio St.3d 93, paragraph two of syllabus; Gullia v. Gullia (1994), 93 Ohio App.3d 653, 659. However, in Kaechele, the problem was that neither the journal entry nor the record indicated the basis for the court's award. The Supreme Court held: The problem is that neither the record nor the determination by the trial court tells us how the Brown-McNeely bonus was treated. This, the trial court must do. In allocating property between the parties to a divorce and in making an award of sustenance alimony, the trial court must indicate the basis for its award in sufficient detail to enable a reviewing court to determine that the award is fair, equitable and in accordance with the law. Therefore, the issue herein becomes whether the court's judgment entry and the transcript of the hearing provide sufficient details to enable this Court to review the lower court's determination and whether the lower court considered the factors specified in R.C. 3105.18(C). See, DeLong v. DeLong (March 15, 1995), Clark App. No. 94-CA-00, unreported ("Kaechele has significance in relation to an appellate court's resolution of an abuse of discretion argument. *** Where the trial court fails to explain why or how it came to its decision, and that is not apparent from the record, an appellate court cannot resolve an abuse of discretion argument"); Cole v. Cole (July 29, 1994), Meigs App. No. 93 CA515, unreported ("Even though the judgment entry does not specifically set out the - 9 - basis for the award of spousal support, the judgment entry does contain findings and the record contains adequate evidence which support the award of spousal support"); Dodenhoff v. Dodenhoff (Aug. 25, 1994), Cuyahoga App. No. 66100, unreported ("Our review of the transcript demonstrates that the court heard testimony regarding all of the factors listed in R.C. 3105.18(B). Based on this testimony the court issued findings of facts"); DeSantis v. DeSantis (Dec. 20, 1990), Cuyahoga App. No. 57827, unreported at 10 (evidence supports award of "alimony" as record is replete with testimony concerning earning abilities of parties at time of trial). We hold that the judgment entry contained sufficient findings along with the transcript that reflected a consideration of the key factors. The trial court in its journal entry found that defendant's potential income/earning ability as a stockbroker was $45,000 a year and that defendant also had training as an EMT, realtor and financial planner; that plaintiff had an earning ability of $19,500 per year; that defendant's earning ability had been reduced because of the divorce proceedings, which are now ended; that defendant has no costs associated with his residence (the marital home) which is currently owned by his parents and he has paid no rent, mortgage obligations or taxes thereon since July of 1993 when he moved into the residence. (Journal Entry pp. 2-3). The court itemized the material assets and liabilities of the respective parties in a narrative fashion (Id. at 3-5) and awarded $400 per month for six - 10 - years as spousal support when the daughter living with plaintiff would reach majority. The transcript indicates that, although defendant receives benefits from his employer, plaintiff does not due to her part-time status as an employee. Once the divorce was final, she would have to finance her own health care insurance until she can find full-time employment. Her monthly expenses were estimated to be about $1,900; while her monthly net income was $1,228. Based on this evidence, we find the trial court alluded to many of the factors required under the statute specifically or by implication in its findings and that the evidence presented at trial and the judgment entered thereon provides sufficient basis for review. The trial court did not act unreasonably, unconscionably or arbitrarily when it awarded plaintiff spousal support in the amount of $400 a month for six years. We also find no merit to defendant's argument that the court awarded spousal support before determining the property division. Although, admittedly, the court in its journal entry placed the paragraph regarding the spousal support before the property division provisions, it does not lead us to believe that the court determined the spousal support award before the property division. The spousal award was made in the same judgment entry as the property division. Changing the order of the paragraphs would not change the result. However, we do find that the court neglected to make the award subject to the death, remarriage or cohabitation of - 11 - plaintiff and the further jurisdiction of the court, as now required by law. R.C. 3105.18(E)(1); Nori v. Nori (1989), 58 Ohio App.3d 69, 73. We will modify the judgment accordingly. This assignment of error is overruled. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN AWARDING THE APPELLEE $15,000.00, AS ADDITIONAL SPOUSAL SUPPORT, IN ATTORNEYS FEES WITHOUT SETTING FORTH THE BASIS FOR SUCH AWARD AS REQUIRED BY LAW. An award of spousal support may be made in the form of an allowance for reasonable attorney fees. Swanson v. Swanson (1976), 48 Ohio App.2d 85, 89. Consideration must be given to the reasonableness of the fee award and to the criteria used in the granting of a spousal award. Id. at 90. 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 the evidence; or, whether there was an abuse of discretion. Id.; Oatey v. Oatey (1993), 83 Ohio App.3d 251, 263; Birath v. Birath (1988), 53 Ohio App.3d 31, 39. The Swanson court further referred to DR2-106(B), Code of Professional Responsibility [(1970), 23 Ohio St.2d], which provides the following guidelines for determining the reasonableness of a fee: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular - 12 - employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. (4) The amount involved and the results obtained. (5) the time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent. Swanson at 90-91. Further, the Swanson court cautioned that: [T]he initial overriding consideration is the financial ability of the individual in question to meet the demands of any award. See Rivers v. Rivers (1965), 14 Ohio App.2d 120. Not only must the award be within the individuals's ability to pay, but it must also leave that individual the means to maintain his own health and well being by obtaining proper food, shelter and clothing, and it must not burden him to the extent his incentive to pay is destroyed. Blaney v. Blaney (Iowa 1968), 130 N.W.2d 732, 733 (Iowa 1964). See Coleman v. Coleman, [(Mo.App. 1958)], 318 S.W.2d 378. Id. at 95. The trial court must make a factual determination as to the reasonableness of the fees charged by a party's counsel. The reasonableness of the fees is tested by the disciplinary rule factors set forth in Swanson, supra. R.C. 3105.18(H) and Domestic Relations Loc. R. 21(A). A trial court is precluded from making - 13 - the required factual determination when the party, through his or her attorney, provides no evidence to the court showing the nature of the services rendered, the difficulty of the services performed, or any other information required by Swanson. See Braun v. Braun (Oct. 18, 1984), Cuyahoga App. No. 47960, unreported. That was not the case below. Here, plaintiff's counsel offered itemized evidence of the services rendered, the difficulties encountered and the reasonableness of the work and the hourly rates charged. The trial court found that $28,335 in fees incurred by plaintiff were reasonable and necessary, of which it required defendant to pay $15,000. (Journal Entry at 5, 8). This was supported by the testimony of plaintiff's attorneys. Defendant challenges the attorney fees by asserting that the trial court failed to consider defendant's financial ability to meet the demands of the award. However, the record shows that defendant's testimony as to his financial status is questionable. He failed to file any tax returns in 1991-1993 because of the "stress of the divorce," which made it difficult to verify his income. He did inherit $50,000 in 1993 and did not adequately explain what happened to it. He borrowed approximately $70,000 from his parents and $1,500 from a friend, yet he maintained that he could not pay his bills. He acknowledged that he has not paid any bills for two years and that his parents are supporting him. Nevertheless, he has funded a post-decree challenge to support this appeal and a separate action against plaintiff and WVIZ Channel 25, - 14 - in which he retained counsel. Hence, defendant had income of $71,500 from loans, a $50,000 inheritance, pays no bills, is supported by his parents, stays rent free in the house they purchased in a sheriff's sale, initiated several court actions, but persists in arguing that he is without income to pay the fees. The fact that he is voluntarily underemployed and has imputed annual income of $45,000 also bears on this issue as hereinafter discussed. We find no abuse of discretion in the award of attorney fees to plaintiff as part of her spousal support. This assignment of error is overruled. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DETERMINING THAT A LOAN FROM THE APPELLANT'S PARENTS, WHICH WAS USED FOR SUPPORT OF THE FAMILY, AND WHICH WAS EVIDENCED BY THE WIFE'S SIGNATURE ON A PROMISSORY NOTE, WAS A SEPARATE AND SOLE OBLIGATION OF THE APPELLANT. Defendant also contends that because plaintiff signed the note to defendant's parents she owes the money and should share in that debt. However, the record is replete with testimony by plaintiff that she was forced to sign the note under duress and the trial court so found. (Journal Entry at 5-6). Plaintiff testified that defendant had been physically abusive to her and the children during the marriage. She expressed her fear of physical harm and she and the children spent several months at a battered women's shelter. She expressed that fear, even on cross-examination, by her former husband. - 15 - Plaintiff stated in testimony that she was unaware of defendant's parents lending any money to them. She also stated she was unaware of receiving any benefit from defendant's parents. It was plaintiff's testimony that she did not handle the family finances; all financial records were kept at defendant's workplace; she was forced to sign blank tax returns; she turned her entire paycheck over to defendant when she was working; defendant paid all the bills since he was working fulltime as a stockbroker during their marriage. Although defendant's testimony disputed plaintiff's contentions, his testimony was vague and ambiguous in material aspects. As the court in Pettet v. Pettet (1988), 55 Ohio App.3d 128, 129 stated: The value (necessity) of findings of fact in weight of the evidence appellate reviews of domestic relations matters is underscored by the repeated admonitions of the Ohio Supreme Court that we are not to substitute our judgments for the discretionary call of a trial judge. It is the fact finder, trial judge, who is in the unique position to observe the character and demeanor of the parties and witnesses, the candor or lack of candor with which they testify, and the credibility to be attached to the evidence. Upon hearing and weighing all the evidence in the present case, the trial court found that: The Defendant borrowed the sum of Thirty Three Thousand Seven Hundred Fifty-Six dollars and forty-five cents ($33,756.45) from his parents ***. Plaintiff [Appellee] either had no knowledge of the debts to Defendant's parents or was forced to sign documents that these monies were received but there is no - 16 - evidence as to specific payments made from the Defendant's parents to the parties. therefore, the Court finds that any debt to Defendant's parents are Defendant's personal debts and therefore non-marital. (Journal Entry at 5-6). The trial court found plaintiff's testimony credible. The evidence presented supports the trial court's finding of duress. The Supreme Court stated that threats may be held to constitute duress "*** if such threats overcome the will of such person, remove [her] capacity to act for [herself] and cause [her] to perform an act [she] is not legally bound to perform ***." Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245. Plaintiff testified as to her fear of defendant based on his abuse during the marriage. Further she testified as to his control over the finances, whether she could work outside the home and essentially all facets of the relationship. Defendant controlled the marriage and plaintiff while she was in the marriage. As a result, his threatening manner when ordering her to sign the note, placing himself between her and the door, becoming angry and red- faced, was evidence that he overcame her will and she signed out of fear for her safety. [I]f from an examination of the record as a whole in the trial court there is some evidence from which the court could have reached the ultimate conclusions of fact which are consistent with his judgment, the appellate court is bound to affirm on the weight and sufficiency of the evidence. - 17 - Pettet at 130. The record in this case contains evidence which is consistent with the holding of the court. This assignment of error is overruled. IV. THE TRIAL COURT ERRED IN IMMPUTING [SIC] INCOME TO THE APPELLANT FOR PURPOSES OF CALCULATING CHILD SUPPORT, RATHER THAN TAKING INTO ACCOUNT THE APPELLANT'S AVERAGE INCOME OVER THE PAST YEARS, AS REQUIRED BY STATUTE. The trial court is authorized to impute to the gross income of a parent who is unemployed or underemployed a sum of the gross income of the parent and any potential income of the parent. R.C. 3113.215(A)(1)(b). Defendant did not contest that he was underemployed during the two years prior to the divorce trial due to the burdens of the divorce proceeding and his decision to proceed pro se. Potential income may be imputed to a parent that the court determines is voluntarily unemployed or voluntarily underemployed. R.C. 3113.215(A)(5). As the Supreme Court held in Rock v. Cabral (1993), 67 Ohio St.3d 108, syllabus: Whether a parent is "voluntarily underemployed" within the meaning of R.C. 3113.215(A)(5) and amount of "potential income" to be imputed to a child support obligor are matters to be determined by the trial court based upon the facts and circumstances of each case. The determination will not be disturbed on appeal absent an abuse of discretion. Furthermore, "[T]he parent's subjective motivations for being voluntarily unemployed or underemployed play no part in the determination whether potential income is to be imputed to that parent in calculating his or her support obligation." Id. at 111. - 18 - Defendant herein chose to fire his attorney and take over the defense of the divorce proceedings. He voluntarily undertook to file numerous motions, subpoenas, and actions in the court prior to the trial. By his own admission, his employment was reduced because of his decision to represent himself. Hence, the trial court's decision to find defendant voluntarily underemployed was not an abuse of discretion. The court reasonably anticipated that, now that the stress of the divorce trial is behind him, the defendant can return to full-time gainful employment. Defendant contends the lower court was restricted to imputing his income based on an average of his actual income. However, pursuant to R.C. 3113.215(A)(1) the court is not so restricted: (1) "Income" means either of the following: (a) For a parent who is employed to full capacity, the gross income of the parent; (b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent. (Emphasis added.) R.C. 3113.215(A)(5) defines potential income as: (5) "Potential income" means both of the following for a parent that the court, or a child support enforcement agency pursuant to sections 3111.21 and 3111.22 of the Revised Code, determines is voluntarily underemployed: (a) Imputed income that the court or agency determines the parent would have earned if fully employed as determined from the parent's employment potential and probable earnings based on the parent's recent work history, the parent's occupational qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides. - 19 - (b) Imputed income from any nonincome- producing assets of a parent, as determined from the current rate of long-term treasury bills or another appropriate rate as determined by the court, if the income is significant. Therefore, the court is not restricted to the actual earnings of the defendant as shown by his prior income, but may also consider potential income based on the factors set forth in R.C. 3113.215(A)(5). "[I]n calculating and awarding child support, a trial court must consider the 'potential income' as well as gross income of a parent the court determines to be voluntarily unemployed or underemployed." Rock v. Cabral at 111. Defendant has failed to show that the court abused its discretion in imputing an annual salary of $45,000 to him. The trial court found that: Defendant [has] an earning ability of $45,000 per year as a stock broker. Defendant also has training as a realtor, financial planner, and emergency medical technician. Defendant also indicated that his earning ability has been reduced because of divorce proceedings which are now ended; further, Defendant has no costs associated with his residence as it is currently owned by his parents and he is making no rent, mortgage or tax payments and has not since July of 1993 when he moved into that residence. The evidence presented at trial supports the court's imputation. The court only had before it defendant's tax returns for the years 1986-1990. According to these returns for the years 1986 - 1990 indicated that defendant's income was as follows: 1986 = $53,053 1987 = $59,826 - 20 - 1988 = $42,531 1989 = $22,883 1990 = $46,849 The average income of these years is $45,028, which is very close to the court's $45,000 imputation. No income tax records were submitted for the years 1991-1993. Even so, the court also could consider the fact that defendant himself estimated that his income for 1991 was $45,000. According to Dean Witter's records of defendant's earnings, he made $31,365 in 1992 and $18,798 in 1993, which does indicate a decline in defendant's salary, however, defendant himself attributed part of the decline to the amount of time he has spent representing himself pro se in the divorce action. The court's imputation is also supported by the fact defendant is living rent-free in the marital residence, received a personal, non-marital inheritance of $50,000 in 1993, the use of which was partially unexplained; fringe benefits from Dean Witter, i.e., healthcare, pension plan; and his skills as a financial planner, realtor and EMT. Based on the above, we find the lower court did not abuse its discretion in imputing $45,000 to defendant in income in calculating the child support award. We find no abuse of discretion in the trial court's assessment of defendant's potential earning capacity at $45,000 for purposes of determining his support obligations. This assignment of error is overruled. - 21 - Judgment affirmed as modified. - 22 - 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 Court of Common Pleas, 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. SPELLACY, P.J., and DYKE, 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 .