COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68781 TEOLA SEE : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION CHARLES R. SEE : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Division of Domestic Relations, Case No. D-222936. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Steven C. Froberg, Esq. 700 Marion Building 1276 West Third Street Cleveland, Ohio 44113 For Defendant-appellant: James L. Hardiman, Esq. 1025 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1405 - 2 - SWEENEY, JAMES D., P.J.: Defendant-appellant Charles R. See (d.o.b. April 13, 1945) appeals from the trial court's determination concerning the distribution of the marital estate and the award of spousal support. For the reasons adduced below, we affirm. A review of the record on appeal indicates that defendant and plaintiff-appellee Teola See (d.o.b. December 31, 1944), who first met one another and began their romantic relationship while in high school, were married on or about July 21, 1965. The parties separated in 1984, reconciled for a time, then separated for the final time in 1986 when the defendant left the marital home. Four 1 children were born as issue of the parties. In mid-1994, the matter, which included numerous motions to show cause and for sanctions by both parties, was heard over a period of four days by trial referee Ann Weatherhead. On September 30, 1994, the trial referee issued her twenty-four page report and recommendation. The plaintiff filed her objections to the referee's report on October 13, 1994, which: (1) noted that the itemization of debts total amount was incorrect as it did not reflect the balance due on 1 These four children had all reached adulthood by the date the complaint for divorce was filed by plaintiff-appellee on December 15, 1992. The children and their dates of birth are as follows: a. Michelle Renee Robinson, 11-24-62; b. Charles Willis See, 4-7-64; c. Veronica Denise Howard, 3-10-65; and, d. Rosalind Carol See, 11-4-69. - 3 - the mortgage on the marital home for which the defendant should also pay and hold plaintiff harmless; (2) sought clarification of whether defendant would be credited with any mortgage payments after April 21, 1994, as an offset against amount owed by the defendant for temporary support payments; and, (3) sought the court to retain jurisdiction to modify spousal support should the need arise. Plaintiff's objections were unsupported by further evidence, transcripts or affidavits. The defendant filed his objections to the referee's report on October 14, 1994, generally taking umbrage with the referee's recommendations concerning the following: (1) his liability for allegedly jointly incurred debt on credit cards and income tax obligations; (2) the equity distribution on the marital home and defendant's pension; (3) the amount and term of the spousal support; and, (4) his contribution of $4,000.00 toward plaintiff's attorney fees. Defendant's objections were unsupported by further evidence, transcripts or affidavits. On October 21, 1994, plaintiff filed her reply brief to defendant's objections to the referee's report. The trial court ruled on the objections to the referee's report on February 1, 1995, in a one-page order overruling defendant's objections, granting plaintiff's objections, finding that the defendant was liable for debt totals in the amount of $46,378.69 as advanced by plaintiff in her objections, and ordering - 4 - 2 counsel to prepare and submit a QDRO order and a judgment entry reflecting the recommended orders and modifications. Journal Vol. 2546, page 900. On March 8, 1995, the trial court journalized the 3 submitted judgment entry prepared by plaintiff. See Journal Vol. 4 2566, pages 829-848 (judgment entry) and 849-854 (QDRO) . This timely appeal presenting three assignments of error followed. Oral argument has been waived. I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT CONCLUDED THAT THE APPROPRIATE TERMINATION OF THE MARITAL RELATIONSHIP WAS THE TIME OF TRIAL FOR PURPOSES OF DIVIDING THE PROPERTY ACQUIRED DURING THE MARRIAGE. R.C. 3105.171(A)(2) provides in pertinent part as follows: (A) As used in this section: * * * (2) "During the marriage" means whichever of the following is applicable: 2 The term QDRO refers to a Qualified Domestic Relations Order as applied to a parties' pension provider. 3 This submitted judgment entry was approved by plaintiff's counsel and the referee prior to the court's signature. Defense counsel neither approved nor rejected the judgment entry. See Loc.R. 28(B)(2) of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division. 4 The QDRO has been partially complied with in mid-1995 in that: (1) the defendant's pension provider, ELCA Institutional Pension Plan, has assigned to the plaintiff one-half of defendant's pension as ordered by the trial court; and, (2) plaintiff has received a lump sum distribution of her balance in the amount of $8,753.91 ($10,941.91 in AELC Retirement Plan accumulations minus $2,188.00 in withheld federal taxes) from the defendant's AELC Retirement Plan. - 5 - (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 that 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. In dispensing appellate review herein on whether the trial court abused its discretion in determining the term of the marriage for purposes of dividing the marital assets equitably pursuant to the dictates in R.C. 3105.171(B), (C), (E) and (F), we note that: A trial court has broad discretion in distributing the assets of the marriage. Berish v. Berish (1982), 69 Ohio St.2d 318, 432 N.E.2d 183. "A reviewing court *** should not substitute its judgment for that of the trier of fact unless, considering the totality of the circumstances, it finds that the court abused its discretion. *** "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." Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131, 541 N.E.2d 597, citing Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 518 N.E.2d 1197, and Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. - 6 - Staskey v. Staskey (April 4, 1995), Jefferson App. No. 93-J-5, unreported, 1995 Ohio App. LEXIS 1446. Also see Masters v. Masters (1994), 69 Ohio St.3d 83, 85, 630 N.E.2d 665. In the judgment entry of March 8, 1995, which borrowed heavily from the referee's report, the court stated the following: The Court further finds that beginning in 1984, the Defendant was not consistently at the home, that the Defendant left the home after an altercation on March 19, 1986, never to reside there again, although thereafter he spent the night on at least one occasion; that the Plaintiff had the use of some credit cards after the parties' separation and had her name taken off of the accounts in 1993; that the parties had a joint checking account into which the Defendant deposited funds and from which the Plaintiff wrote checks for household bills as well as for personal bills of the Defendant; that this account remained open until some time in 1991 when the Plaintiff closed it; that the Defendant paid the utility bills at that home until some time in 1989; that in 1989 the Defendant took up residence with another woman and her minor child; that the Defendant has paid the monthly mortgage with Leader Mortgage Company for the marital home on Roxbury Road in East Cleveland, currently $271.00 per month, from when it was purchased to the time of trial. The Court further finds the parties physically separated in March of 1986, however they filed joint tax returns until at least 1991, they maintained a joint checking account until 1990 and joint credit cards until 1993. The Plaintiff returned the joint checkbook in 1990 and had her name taken off of the credit cards in 1993. The Court further finds the economic relationship between the parties persists in that Defendant continues to pay the mortgage on the marital home. - 7 - The Court further finds that the Defendant has presented insufficient evidence to demonstrate that using any date other than the trial date as the date of the end of the marriage, would be inequitable. The Court further finds that April 24, 1994, the first day of the trial is when the marriage ended. Journal Vol. 2566, pages 831- 832 (Emphasis added). While it is true that the parties separated in 1986, and the plaintiff-wife took greater steps towards independence thereafter to provide for her and her childrens' necessities, the continued financial dealings between the parties, which can be characterized as substantial when one considers, for example, that defendant paid the mortgage on the marital home up to the time of trial, discounts appellant's argument that the trial court abused its discretion in determining that the termination of the marriage between the parties was the first day of trial. Accordingly, the first assignment of error is without merit. II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT AWARDED TO DEFENDANT-APPELLANT THE PLAINTIFF-APPELLEE'S INTEREST IN THE MARITAL PREMISES AND ORDERED HIM TO PAY HER THE SUM OF $5,973.10 FOR HER SHARE OF THE MARITAL PREMISES. In this assignment, appellant argues that the court abused its discretion in awarding the dilapidated marital home to him and ordering him to compensate his wife for her share of the equity therein, while at the same time burdening him with the repayment of approximately $35,000.00 in other non-marital home mortgage related - 8 - debts, primarily for overdue taxes (including penalties and interest thereon) and consumer debt, incurred during the term of 5 the marriage. These arguments are without merit. The record clearly discloses that the parties' employment history and earning potential are wholly disparate. The defendant is a high school graduate with some college credit who has been employed by the Lutheran Metropolitan Ministry Association for over twenty years, reporting income in 1993 in the amount of $57,721.00 (this amount does not include his salary for the last two weeks of December for that year, but does include $6,500.00 in consulting 6 fees) as a social service administrator. The defendant received a four percent (4%) raise by his employer in 1994. The plaintiff, on the other hand, earned her GED high school equivalency in 1975 and first worked outside the marital home in September of 1987, earning at that time $6.50 per hour while working twenty hours per week. At the time of the referee's hearing, plaintiff was earning $9.00 per hour working full-time, which represents an annualized income of approximately $18,000.00 to $19,000.00 per year. He is in good health while she suffers from an asthma condition, which forced her to miss fifteen days of work in 1993. 5 These debts amounting to approximately $35,000.00 were almost exclusively incurred for the benefit of the defendant following separation. 6 The record reflects that the defendant-appellant has been living in his girlfriend's Solon, Ohio home which is valued at $120,000.00. When combining the defendant's income with that girlfriend's income, the pair have income in excess of $90,000.00 per year. - 9 - The referee noted, and the record supports, that defendant is much more experienced in commerce and real estate affairs than plaintiff, that the defendant is in a better position to obtain financing relative to the marital premises by virtue of this experience and his earning potential ability, and that a distribution of plaintiff's share of the net equity in the home to the plaintiff would enable plaintiff to establish a new residence. This ability to establish a new residence, or to rehabilitate the marital home to acceptable city housing standards, would likely be next to impossible given the limited means and earnings available to the plaintiff. The marital home's fair market value was appraised by plaintiff as $25,000.00, while the defendant appraised the value at $29,000.00. The court found, and the record supports, that the home was in an abysmal state of disrepair, requiring various repairs estimated at totalling $12,000.00 to $15,000.00. The court accepted the plaintiff's valuation of the fair market value of the marital home. Further, the court found that the outstanding balance owed on the marital home was $11,553.80 at the time of the referee's hearing. Subtracting the marital home's mortgage balance from the accepted appraised fair market value for that property leaves equity in the amount of $13,446.20. Dividing that equity in half would leave each party with an equity share of $6,723.10. The court subtracted from plaintiff's share of the marital home equity the amount of $750.00, an amount which represents defendant's one- - 10 - half share of plaintiff's accrued pension plan. Thus, the net amount owed plaintiff for her share of equity in the marital home was $5,973.10. In conclusion, we conclude that the trial court did not abuse its discretion in the division of the marital assets under consideration in this assignment. Berish, supra. The second assignment of error is overruled. III THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT AWARDED THE APPELLEE SPOUSAL SUPPORT FOR SIXTEEN YEARS THROUGH THE YEAR 2010. The trial court awarded spousal support to plaintiff-wife in the amount of $300.00 per month from April 21, 1994 to April 21, 2010, a period of sixteen years, on the basis of the facts and figures contained in the second assignment of error and the following language from the judgment entry, which facts are not contested by the defendant-appellant, but whose outcome, for purposes of permitting an award of spousal support as drawn from those facts, is questioned: The Court further finds that the parties have been married for thirty-one years. The Court further finds spousal support is taxable to the recipient and deductible to the payor. The Court further finds the Plaintiff's martial (sic) responsibilities and indeed her responsibility to care for at least one of the parties' children before the marriage resulted in her leaving high school before she graduated. She did not work until the parties' youngest child was over twenty-one years old - 11 - and after the Defendant had moved out of the marital home. The Court finds that the Plaintiff had monthly expenses of $1219.50 at the time of trial and that this sum does not include anything for housing. The Court further finds that the Plaintiff would have to pay $188.00 a month under COBRA to maintain the present health insurance that the Defendant covers her with if she wished to maintain that insurance after the parties were divorced. The Court further finds that the Defendant's rent where he lived when the trial started was $450.00 per month and that he paid the rent in full and that Defendant paid $330.00 per month for food for himself and his girlfriend and her son, and that he paid all of the household utilities except for the telephone and that these utility bills averaged $290.00 per month. The Court further finds court (sic) that Defendant had the following monthly expenses: $40.00 for laundry for himself, $100.00 for clothes for himself, $70.00 for medical expenses, and $110.00 for life insurance and $125.00 for entertainment. The Court further finds that by the end of the trial Defendant was living in a house in which his girlfriend had inherited a one-sixth interest and had taken a mortgage to buy out her siblings. The Court further finds, using Defendant's rental expenses of $450.00 per month, that he has monthly expenses of $1485.00 excluding payment of debt. The Defendant testified he paid $158.00 per month for his 1984 Lincoln Town Car. This sum is not included in the monthly total. The Court further finds that the Defendant should be ordered to pay spousal support of $300.00 per month beginning April 21, 1994 and ending April 21, 2010, or upon either party's death or Plaintiff's remarriage, and that he be given credit for any payments he has made on the mortgage on the home on Roxbury Road pursuant to the temporary support order against - 12 - his obligation. Journal Vol. 2566, pages 837- 838. See R.C. 3105.171(F) for the factors to be considered by a trial court in making a division of marital property and determining the amount of any distributive award. See R.C. 3105.18(C) for the factors to be considered by a trial court in determining spousal support. Additionally, we note that the defendant-appellant, borrowed $6,000.00 from his employer, some of which went to the purchase of his girlfriend's home, and that he co-signed some loan documents concerning the loan on that house, the purchase price of which was $120,000.00. Journal Vol. 2566, page 835. In reviewing the determination of spousal support, it is clear that the trial court used the relevant factors contained in R.C. 3105.18 in making its award. The facts contained in the record on appeal, and relied upon by the trial court in its judgment entry, demonstrate that the spousal support award was sufficiently based upon the needs of the plaintiff-appellee and the ability of the defendant-appellant to meet the obligation imposed so as to render the award equitable when based on a review of the factors in R.C. 3105.18. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 554 N.E.2d 83. Accordingly, we conclude that the award of spousal support herein was not an abuse of discretion. The third assignment of error is overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court, Division of Domestic Relations, 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. SARA J. HARPER, J., and JOHN T. PATTON, J., CONCUR. JAMES D. SWEENEY 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 journalization, at which time .