COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68838 : GERALD M. BURMA : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION SUSAN H. BURMA, ET AL. : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 4, 1996 CHARACTER OF PROCEEDING: Civil appeal from the Domestic Relations Division of the Common Pleas Court, Case No. D-205168 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JAMES S. CAHN, ESQ. GARY B. KABAT, ESQ. JAY H. SALAMON, ESQ. CHRISTINA M. JANICE, ESQ. HERMANN, CAHN & SCHNEIDER KABAT, MIELZINER, SOBEL 1301 East Ninth Street & JANICE Cleveland, Ohio 44114 25550 Chagrin Boulevard No. 403 Beachwood, Ohio 44122 ROBERT M. LUSTIG, ESQ. 615 Leader Building - 2 - Cleveland, Ohio 44114 - 3 - KARPINSKI, J.: Appellant, Dr. Gerald M. Burma, appeals from the judgment entry of the Domestic Relations Division of the Common Pleas Court. Dr. Burma contests the lower court's (1) calculations regarding his net bonus and (2) refusal to set a termination date for spousal support. Based on the facts of this case and the prior decision from this court, the judgment of the lower court is affirmed. Dr. Burma married Susan H. Burma on April 13, 1973. At the time of their marriage Dr. Burma was a student without substantial income. Dr. Burma filed for divorce on September 9, 1990, at which time he was earning in excess of $800,000 a year. The divorce was journalized in a decision dated January 12, 1993. Dr. Burma appealed the original divorce decision. This court in Burma v. Burma (Sept. 29, 1994), Cuyahoga App. No. 65052, unreported (Burma I), affirmed the divorce but remanded the case to allow the trial court to reassess the division of marital assets. This court also ruled that the lower court erred by distributing Dr. Burma's gross employment bonus. The lower court was instructed to withhold applicable taxes and disburse the remaining net bonus. Dr. Burma then filed a motion for reconsideration/ clarification to determine whether the bonus to be withheld by the employer should be 40 percent or 25 percent. Dr. Burma asked this court for a ruling that 40 percent could be withheld. This - 4 - court, declining to rule on this specific question, denied the motion for reconsideration. On remand, the lower court, withholding 25 percent, reduced the bonus from a gross of $454,000 to a net of $338,230. Of this net bonus, the divorce court awarded $212,600 to Susan Burma and $125,630 to Dr. Burma. I. THE TRIAL COURT, BY FAILING TO ACCOUNT FOR WITHHOLDING TAXES AND A PRIOR DISTRIBUTION OF MONIES FOR AN INTERIM FEE AWARD, ERRED IN ITS VALUATION OF CERTAIN BONUS COMPENSATION UNTIMELY AWARDED TO THE DEFENDANT. In this assignment, appellant challenges the amount of his employment bonus awarded to appellee. As part of his employment to T.M. Sequeira, M.D., Inc., Dr. Burma was to be paid an annual bonus. In the original divorce decree, the trial court ordered that the gross sum be paid to Mrs. Burma. On appeal, both Dr. Burma and T.M. Sequeira argued that Sequeira is required to withhold applicable federal, state, and local taxes. This court agreed, stating as follows: It is unclear from the record how much money was available from the bonus compensation. Sequeira's argument that it is required to withhold taxes from any bonus compensation is well taken. Sequeira must be permitted to withhold the applicable funds in order to comply with federal regulations. The trial court erred by ordering the gross amount of the bonus be paid to Mrs. Burma. The trial court must permit taxes to be withheld and then determine what funds remain of the bonus. Those funds are then subject to disbursement by the trial court. Dr. Burma's second assignment of error and T.M. Sequeira, M.D., Inc.'s first and second assignments of error are sustained. (Emphasis added.) In reviewing the judgment of the domestic relations court, we acknowledge that the lower court has broad discretion in - 5 - deciding what is equitable based upon the facts and circumstances of a particular case. Cherry v. Cherry (1981), 66 Ohio St.2d 348. Generally, the division of marital property is reviewed under this abuse of discretion standard. Martin v. Martin (1985), 18 Ohio St.3d 292. In denying a motion for reconsideration/clarification, this court previously declined to specify the percentage of the bonus that should be withheld for taxes. The prior decision from this court stated, however, "Sequeira must be permitted to withhold the applicable funds in order to comply with federal regulations." Burma I at 7-8 (emphasis added). This court did not state that the net bonus is to be computed using the employer's past practice of withholding 40 percent. The opinion required only compliance with federal regulations. Dr. Burma does not contest that the federal regulations require withholding a flat percentage rate of 20 percent (Treas.Reg. 31.3402(g)- 1 1(b)(1). Appellant alleges, however, that whatever the mandated withholding rate, the employee's tax bracket will result in the employee being taxed at a 40 percent rate. As wife properly notes, husband's tax bracket at this point is not known. Because the bonus has not yet been received and because husband's tax credits have not been established for the year the bonus will be listed, for the court to choose a tax bracket would be to engage in speculation. This court's previous order, moreover, addressed 1 Ohio requires a 3.5 percent withholding on supplemental income. The federal and state taxes together with the municipal tax result in a total withholding of 25.5 percent. - 6 - what the employer should withhold, not what the taxpayer ultimately will pay. Appellant does not cite any regulation that specifies that a higher withholding rate is required. If the employer withholds 20 percent, the employer is in compliance with federal regulations and thus with the prior court of appeals decision. Absent authority requiring a higher rate of withholding, this court will not upset the lower court's decision. Accordingly, the trial court did not err by strictly following this court's mandate and deducting a 25.5 percent withholding tax to compute the net bonus. Appellants also argue that a previous distribution to Dr. Burma of $50,000 as part of the bonus must have been based upon the amount of $83,333.33 before taxes and therefore request that the bonus be reduced by this amount before determining payments to Mrs. Burma. This argument lacks merit. The amount of $83,333.33 is an inferred piece of fiction. It is the total of the $50,000 Dr. Burma actually received as part of his bonus in addition to the $33,333.33 he is asking the court to declare should be deducted for his taxes. In the case sub judice, the trial court computed the net bonus, after a deduction of 25.5 percent for taxes, to be $338.230. This figure is correct. The lower court, in its discretion, then awarded $125,630 to the husband. The record is unclear as to how much money has actually been paid out from this bonus. Both parties agree, however, that husband received a partial distribution of $50,000 from the bonus - 7 - 2 during the pendency of the lower court proceedings. The trial court was aware of this payment, and deducted $50,000 from that portion of the bonus to be awarded to husband. Therefore, this court shall treat this payment as an advance. Accordingly, the $125,680 Dr. Burma is to receive shall be reduced by the actual amount advanced to him from that bonus. Dr. Burma also argues that the $25,000 paid to Mrs. Burma for her attorney fees should be deducted from the amount to be distributed as her part of the bonus. This argument ignores the clear statement of the lower court in its Judgment Entry from March 17, 1995: This Court previously held that Mrs. Burma incurred $80,000 in reasonable attorney fees and costs, but did not order [appellant] to pay these fees. In light of the reduction in the marital estate mandated by the remand order, the Court now finds that an additional award of spousal support for Mrs. Burma's attorney fees is warranted. Because Mrs. Burma has already received $25,000.00 in interim fees during the pendency of this action for services rendered by Mrs. Seelie, the Court finds that $55,000.00 of attorney fees remains open for consideration by this Court. Of that outstanding amount, the Court finds that Mrs. Burma should receive one-half of the total amount outstanding or $27,500.00. This order clearly indicated that, because the court of appeals order regarding the bonus resulted in reducing the marital estate, the court decided to make "an additional award of spousal support for Mrs. Burma's attorney fees." (Emphasis 2 Some money was advanced to Dr. Burma before a restraining order was placed on the bonus of $454,000. In their appellate briefs, both parties state the payment to Dr. Burma was $50,000; however, the testimony below reveals that this payment may actually have been $46,000 (Tr. 1729-1731). - 8 - added.) This amount was clearly characterized as an award in addition to the bonus, not part of it. Accordingly, assignment of error No. 1 is overruled. II. THE TRIAL COURT ERRED IN FAILING TO FIX A DATE CERTAIN FOR TERMINATION OF PLAINTIFF'S SPOUSAL SUPPORT OBLIGATION. In this assignment, appellant argues that the trial court erred by not setting a date for the termination of alimony. This issue was addressed by the Ohio Supreme Court in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64. In Kunkle, the court stated that generally awards of sustenance alimony should provide for a termination date. The court qualified this rule of law, however, in 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 the 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. 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 case at bar fits squarely into the exception to the general rule that alimony should have a definite termination date. First, the parties were married for eighteen years which, in today's society, is a marriage of long duration. Second, wife does not have a college degree and can expect to make only between $13,000 and $20,000 a year, whereas husband is able to - 9 - earn over $800,000 a year. Furthermore, wife is 46 years old and receives counseling for mental health problems. Accordingly, the trial court did not abuse its discretion by not fixing a termination date for alimony. Judgment affirmed. - 10 - 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. JAMES D. SWEENEY, P.J., and SARA J. HARPER, 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 .