COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68101 : KATHLEEN J. D'AMORE : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION FRANK W. D'AMORE : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 28, 1996 CHARACTER OF PROCEEDING: Civil appeal from the Domestic Relations Division of the Common Pleas Court Case No. D-228171 JUDGMENT: Affirm. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JILL F. HELFMAN, ESQ. RICHARD MESSERMAN, ESQ. BEHRENS & GIOFFRE CO., L.P.A. 1940 Huntington Building 1700 Terminal Tower 925 Euclid Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44115 - 2 - KARPINSKI, J.: Defendant, Frank W. D'Amore, appeals from the judgment of the trial court granting a divorce to defendant and plaintiff, Kathleen J. D'Amore. On appeal, defendant argues the trial court erred in the following: (1) failing to provide a termination date for the spousal support award, (2) finding $17,400 unaccounted for and thus awarding $8,700 to plaintiff, (3) awarding $6,000 in attorney's fees, (4) assuming it had jurisdiction to name plaintiff as co-trustee on a trust and (5) failing to dissolve restraining orders at the time of the final divorce decree. For the reasons that follow, we find no merit to these claims of error and affirm the judgment of the court below. Plaintiff and defendant were married from February 25, 1971 to August 22, 1994. Two children were born during this marriage. The parties stipulated that plaintiff was to be both the resi- den-tial parent and legal custodian of these children. Defendant, who was 48 years old at the time of trial, has been employed as a millwright at General Motors since 1968. His average earnings for the three years prior to the divorce were $44,189. Additionally, defendant bought and sold antique Cadillacs for profit. In 1989 or 1990, he purchased a 1959 Biarritz Cadillac for $18,000. He spent approximately $50,000 restoring the car in order to resell it. The car was insured for $76,000; at one time he was offered $90,000 for it. In September, 1992, defendant took the car to a car auction in Indiana, where he sold it for $43,000: $23,000 in the form of a - 3 - check and $20,000 in cash. He deposited the check in Cuyahoga Savings and put the cash in a safety deposit box. This cash was apparently transferred to the basement of his mother's home. Plaintiff was 44 years old at the time of the trial. She has a high school degree and never worked full time during the marriage. She had prior work experience as a clerk in a candy store and, part time, in a delicatessen. She is currently studying to be a medical assistant. She testified that she will be 50 when she expects to complete her studies and that the average starting salary currently for such a position is $6.00 an hour. The court found the marital assets are as follows: Marital home $165,000.00 Plaintiff's IRA - Society Bank 5,680.79 Defendant's IRA - Society Bank 29,311.79 Defendant's GM pension 20,251.00 Defendant's Iron Workers pension-- marital portion 5,203.44 Defendant's savings plan with GM 39,738.22 Life insurance - cash value 3,350.00 Life insurance - cash value 2,660.00 Plaintiff's automobile 6,000.00 Defendant's automobile 2,000.00 Parma Auto Credit Union 641.26 Unaccounted Proceeds from sale of Cadillac Biarritz 17,400.00 Total $297,236.50 The court found the marital debts to be as follows: BBHS and Middle School fees $52.00 Plaintiff's eye doctor 129.00 Pediatric Services 143.00 VISA 239.68 Children's orthodontia 795.00 Cox Cable 50.00 Electric Company 654.00 Parma Hospital 50.00 Real Estate Taxes 1,918.48 Water Bill 158.22 - 4 - Total $4,189.38 The court divided the marital assets as follows: HUSBAND WIFE One-half marital home to each $82,500.00 $82,500.00 Plaintiff's IRA: Society Bank 5,680.00 Defendant's IRA: Society Bank 18,830.66 10,481,13 One half GM pension to each 10,125.50 10,125.50 Iron Worker's pension--marital portion--one-half to each 2,601.72 2,601.72 Defendant's GM savings plan 19,869.11 19,869.11 Wife's automobile 6,000.00 Husband's automobile 2,000.00 Parma Credit Union 641.26 $17,400.00 unaccounted for from 1959 Cadillac Biarritz 8,700.00 8,700.00 Cash value of life insurance 3,350.00 2,660.00 Total Assets $148,618.25 $148,618.25 Minus one-half each for marital debt -$2,094.69 -$2,094.69 Net Total $146,523.56 $146,523.56 Additionally, the trial court found defendant in contempt for removing all the funds from a Society Bank checking account in violation of a temporary restraining order placed on the account. Plaintiff was awarded $6,000 in attorney's fees. Defendant timely appealed, raising five assignments of error, the first of which states as follows: I. THE TRIAL COURT ERRED IN AWARDING APPELLEE SPOUSAL SUPPORT UNTIL HER DEATH, REMARRIAGE OR COHABITATION OR APPELLANT'S DEATH OR RETIREMENT, SUBJECT TO FURTHER ORDER OF THE COURT. In this assignment, defendant argues that the trial court erred by not setting a termination date for spousal support. This argument lacks merit. In Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, the court stated that generally spousal support awards should have a termination date except for certain instances. The - 5 - court in Kunkle stated in paragraph one of the syllabus as follows: 1. Except in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has no resources, ability and potential to be self- supporting, an award of sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties' rights and responsibilities. If any one of the exceptions apply, the trial court will be justified in not setting a termination date for spousal support. The decision whether or not to set a termination date for alimony is reviewed under an abuse of discretion standard. Vanke v. Vanke (1994), 93 Ohio App.3d 373. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. The facts of the case at bar fit into the exception to the general rule that spousal support should have a termination date. This marriage was of long duration, lasting from February 25, 1971, until the judgment entry of divorce of October 4, 1994, over twenty-three years. Additionally, plaintiff is a homemaker who is only beginning to develop meaningful employment. She has never worked full-time outside the home. She has no specialized training or advanced degree that would presently make her marketable for meaningful employment. It would be premature to - 6 - set a termination date for her support, and the trial court, therefore, did not abuse its discretion in failing to do so. Defendant's second assignment of error states as follows: II. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT HAD NOT ACCOUNTED FOR SEVENTEEN THOUSAND FOUR HUNDRED DOLLARS ($17,400.00) FROM THE PROCEEDS OF THE SALE OF THE CADILLAC AND AWARDING APPELLEE EIGHT THOUSAND SEVEN HUNDRED DOLLARS ($8,700.00) FROM WHAT SHOULD BE APPELLANT'S EQUAL SHARE OF THE PROCEEDS FROM THE SALE OF THE MARITAL PREMISES. In this assignment, defendant argues that the trial court erred by awarding $8,700 to plaintiff as half of the $17,400 that the trial court determined were proceeds not accounted for from the sale of an auto. The trial court is vested with broad discretion to divide and distribute equally the marital estate, and a reviewing court should not disturb this decision unless, after considering the totality of the circumstances, it finds that the trial court abused its discretion. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128. In the case at bar the trial court did not abuse its discretion by finding the $17,400 unaccounted for and thus awarding $8,700 to plaintiff. This money resulted from the sale of defendant's restored 1959 Cadillac, which had been insured for $76,000. At the time the parties were experiencing marital difficulties, defendant sold the car at an auction in Indiana for $43,000. After hearing testimony regarding the proceeds of this sale, the trial court found the defendant could not account for $17,400 in cash. As the trier of fact in a divorce case, the trial court is entitled to believe or disbelieve the testimony at - 7 - trial. Swanson v. Swanson (1976), 48 Ohio App.2d 85; Andrades v. Andrades (May 11, 1995), Cuyahoga App. No. 67270, unreported. The details surrounding the car's restoration, insurance value, and sale, along with the location of the proceeds, raise sufficient questions of credibility to justify the court's decision. Accordingly, the trial court did not abuse its discretion in awarding plaintiff $8,700 as half of the unaccounted-for proceeds of the sale of the 1959 Cadillac. Defendant's third assignment of error states as follows: III. THE TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST THE APPELLANT IN FAVOR OF THE APPELLEE FOR HER ATTORNEY'S FEES IN SUM OF SIX THOUSAND DOLLARS ($6,000.00) AND IN FAILING TO DESIGNATE THE AWARD AS ADDITIONAL SPOUSAL SUPPORT. A trial court's award of attorney's fees will not be reversed absent an abuse of discretion. Birath v. Birath (1988), 53 Ohio App.3d 31. When awarding attorney's fees, the trial court must consider the parties' respective needs and ability to pay. Oatey v. Oatey (1992), 83 Ohio App.3d 251, 260. Revised Code 3105.18(H) sets forth the provisions whereby a court can order reasonable attorney's fees: (H) In divorce or legal separation proceedings, the court may award reasonable attorney's fees to either party at any stage of the proceedings, including, but not limited to, any appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it determines that the other party has the ability to pay the attorney's fees that the court awards. When the court determines whether to award reasonable attorney's fees to any party pursuant to this division, it shall determine whether either party will be prevented from fully litigating his rights and adequately protecting his interests if it does not award reasonable attorney's fees. - 8 - In the instant case, the trial court did not abuse its discretion in awarding $6,000 in attorney's fees to plaintiff. Plaintiff's need was established on the basis of her present earning ability. To support the reasonableness of the award as well as defendant's ability to pay, sufficient evidence was presented of (1) defen- dant's reported average income of over $44,000, (2) defendant's additional income from various "side" jobs, and (3) liquid assets awarded to defendant. Finally, defendant's contention that the trial court erred by not designating the attorney fees as part of spousal support is not well-taken. Nothing in Ohio law requires that attorney fees be awarded as spousal support. The statute and case law use the word "may." Birath, supra; Oatey, supra; R.C. 3105.18. This assignment of error is overruled. Defendant's fourth assignment of error states as follows: IV. THE TRIAL COURT ERRED IN REQUIRING THAT THE PARTIES BECOME CO-TRUSTEES OR THAT APPELLANT RELINQUISH HIS ROLE AS TRUSTEE ON THE TRUST ACCOUNTS FOR THE BENEFIT OF HIS MINOR CHILDREN CREATED BY CORA D'AMORE, NOT A PARTY TO THE PROCEEDINGS. In this assignment, defendant argues that the trial court erred by removing defendant and naming plaintiff as co-trustee of trusts for the benefit of the two children. Defendant's mother, Cora D'Amore, is the other co-trustee. The order of the trial court states as follows: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff and Defendant shall be co-trustees on the two (2) Clifford Trust accounts for the benefit of Claudette and Melodee. In the event Cora D'Amore chooses to remain as a trustee on said accounts then Frank D'Amore shall relinquish his role as co-trustee with his mother and make the Plaintiff/Kathleen D'Amore - 9 - a co-trustee with Cora D'Amore on these accounts for the benefit of the two minor children. This assignment of error is overruled for three reasons. First, the issue is moot because testimony established that the original principal reverted back to the mother and the remaining 1 interest is in savings accounts for the children. Second, if the trial court did not have confidence in defendant, it was well within its power to order the defendant to relinquish his position as co-trustee. Third, because the court did not issue any order regarding the mother, defendant's argument that the court did not have jurisdiction over Cora D'Amore is irrelevant. This assignment of error is overruled. Defendant's fifth assignment of error states as follows: V. THE TRIAL COURT ERRED IN ENTERING AN ORDER THAT "ALL RETRAINING [sic] ORDERS PREVIOUSLY ISSUED BY THIS COURT SHALL BE DISSOLVED AND SET ASIDE WHEN THE DEFENDANT HAS COMPLIED WITH THE ORDERS CONTAINED HEREIN. Civil Rule 75(H)(2) states as follows: (2) Restraining Order: Grounds, Procedure. When it is made to appear to the court by affidavit of a party sworn to absolutely that a party is about to dispose of or encumber property, or any part thereof of property, so as to defeat the other party in obtaining spousal or other support, or that a party to the action or a child of any party is about to suffer physical abuse, annoyance, or bodily injury by the other party, the court may allow a temporary restraining order, with or without bond, to prevent that action. A temporary restraining order may be issued without notice and 1 A Clifford trust is created when income from income- producing property is transferred to a beneficiary while the grantor retains a reversionary interest in the property. Helvring v. Clifford (1940), 309 U.S. 311. These trusts are often perceived as short-term trusts. 6 Bogert, Trusts & Trustees (1992) 44, Section 268.10. - 10 - shall remain in force during the pendency of the action unless the court otherwise orders. (Emphasis added.) This rule allows the court to issue restraining orders that last longer than the pendency of the action. Moreover, the trial court's order is not permanent. The order stays in effect until the defendant complies with the terms of the property settlement order. The court found defendant's attempts to exercise dominion over the marital property necessitated the retention of the restraining order. Such a decision was within the discretion of the court. Moreover, it was reasonable because defendant had already been found in contempt for violating the restraining order once by withdrawing money from the Society account. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the 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. NAHRA, P.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .