COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68925 GEORGE SAUER, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION LENORE SAUER, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : MAY 30, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Domestic Relations Division : Case No. D-227218 JUDGMENT : AFFIRMED IN PART AND : REVERSED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: James G. Meimaris 1710 Ohio Savings Plaza 1801 E. Ninth Street Cleveland, Ohio 44114 For defendant-appellee: Richard A. Myers, Jr. 72 Public Square Medina, Ohio 44256 -2- NAHRA, J.: Appellant, George Sauer, is appealing the trial court's award of spousal support and attorney fees to appellee, Lenore Sauer, as well as the court's division of the marital residence. For the following reasons, we affirm in part and reverse in part. The parties had been married 22 years. Appellant was 54 years old and appellee was 53 years old at the date of the hearing. For eleven years, appellee stayed at home to take care of the children. (The children are now emancipated.) Appellee held various jobs for the other eleven years, including elementary school teacher and librarian. She currently works as a librarian and earns $34,000/year. Appellant works as a quality manager at Milbar Corporation earning $38,000/year. The parties' monthly income and expenses are as follows: Husband Wife INCOME $2,179.66 $1,961.84 EXPENSES 2,172.46 2,295.00 -------- -------- DIFFERENCE 7.20 (333.16) The above figures reflect appellee's correction to her income and expense statement for her error in adding car payments twice to her expenses. Appellant alleges appellee also added a $135 car insurance payment twice, but it is not clear from the record whether one of the insurance payments was for home insurance. Appellant asserted appellee misstated her income by subtracting a $114 credit union deduction from her pay check, because this amount -3- was included as a debt expense. Also, appellee allegedly subtracted both the amount she paid to her pension and the matching amount paid by her employer, for a total of $262. The record is not clear as to whether appellee incorrectly subtracted these amounts from her wages. Before the marriage, appellee had received the marital home in a property settlement from her prior marriage. The principal due on the balance of the mortgage at the time of the parties' marriage in 1972 was $9,855.63. The value of the home was $29,000 - $30,000. The mortgage was completely paid off during the marriage. Appellant testified he made 99% of the mortgage payments, while appellee testified she made half the payments. Appellant stated he put a new roof on the house, expanded the driveway, replaced the gutters and re-built the garage. Appellee stated that her brother and father did all the work on the house. The value of the home at trial was $70,000 - $75,000. Appellee's brother, a contractor, testified that the house needed $15,000-$20,000 of repairs. The trial court found that the house was separate property of appellee, but appellant was entitled to $4,927.50 for one-half of the mortgage payments paid during the marriage. The marital assets and liabilities were divided as follows: The husband received his pension ($17,000), vehicles ($12,700) and bank accounts ($1,218), for total assets of $30,918. The wife received her pension ($19,000), a cabin located in Pennsylvania -4- ($14,900), the contents of the home and cabin ($5,000), vehicles ($25,500) and bank accounts ($50), for total assets of $64,450. The husband was awarded debt consisting of his auto loans ($11,300) and credit card debt ($13,591) for total liabilities of $24,891. The wife was awarded her auto loans ($26,000), line of credit for the cabin and other purchases ($20,000), and other debt ($3,500) for total debt of $49,500. The wife's assets over liabilities equaled $14,950, while the husband's assets over liabilities equaled $10,955. Appellee asserted appellant hid marital assets, consisting of $11,000 of deposits to appellant's credit union in 1983 through 1985. Appellant testified that he had no idea what happened to the money. The trial court ordered appellant to pay appellee $400 per month spousal support and $3,000 of appellee's attorney fees. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT WHEN IT ORDERED APPELLANT TO PAY FOUR HUNDRED DOLLARS ($400) PER MONTH IN SPOUSAL SUPPORT, WHERE BOTH APPELLEE AND APPELLANT EARN NEARLY IDENTICAL INCOMES AND APPELLANT'S EXPENSES EQUALED HIS INCOME AND APPELLEE'S INCOME EXCEEDS HER EXPENSES AND NO FACTS OTHER THAN THE DURATION OF THE MARRIAGE SUPPORT THE AWARD OF SPOUSAL SUPPORT AS REQUIRED BY THE OHIO REVISED CODE (sic) 3105.18. Appellant asserts that appellee did not need any spousal support, so it was error to award such support. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, Wolfe v. Wolfe (1976), 46 Ohio -5- St.2d 414, Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, Simoni v. Simoni (1995), 102 Ohio App.3d 628. "Need" is not limited to ability to support oneself with basic needs, but is a relative term which will fluctuate depending on the situation. See Adams v. Adams (1994), 95 Ohio App.3d 419. While appellee had sufficient income and earning ability to fulfill her basic needs, her expenses exceeded her income by $330 per month. It is appropriate to consider a party's expenses in excess of income under R.C. 3105.18(C)(1)(g), standard of living during the marriage or (n), any other factor. Equity requires that a party receive sufficient sustenance alimony to bring him or her to a reasonable standard of living as that established during the marriage. Buckles v. Buckles (1988), 46 Ohio App.3d 102. Appellee had the unusual expense of $400 per month for the line of credit for the cabin. Appellee purchased the cabin to claim as a Pennsylvania residence in order to lower the parties' daughter's tuition payments to a Pennsylvania college. Appellee had vehicle payments of $350 and $390 per month for her personal auto and for a four-wheel drive vehicle to gain access to the cabin. The trial court could have found, in its discretion, that the cabin and four-wheel drive vehicle were necessary for the daughter's college education. The court may have found that had the parties' remained married they would have provided such college education. Considering the other factors set out in R.C. 3105.18(C)(1), an award of spousal support might be reasonable, because appellant -6- earned $4,000 more, the marriage was of long duration, appellee was out of the work force for eleven years to take care of the children and appellee had more debt. Appellee asserts she was entitled to spousal support because she withdrew pension money to pay marital debt, appellant allegedly hid assets and she suffered from depression due to appellant's abuse and affairs. We do not find any of these reasons as justifying spousal support. See generally R.C. 3105.18(C)(1). The trial court did not find that appellant hid assets. Once the court determines support is needed, the court must decide upon a reasonable amount of support. See Kunkle, supra. We can not say that the trial court abused its discretion in awarding the wife $400 per month when her expenses exceeded her income by $330 per month. Support in the amount $400 per month was not unreasonable, arbitrary or unconscionable. The court did err in awarding spousal support indefinitely, without establishing a termination date. An award of spousal support should terminate upon a certain date, unless the recipient does not have the resources, ability or potential to become self- supporting. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67-69. In this case, appellee was capable of supporting herself. Appellee's expenses exceeded her income because of expenses for the cabin and four-wheel drive vehicle, which were necessary for the daughter's college education. These expenses are only necessary as long as the daughter attends college in Pennsylvania. The termination date -7- for support should be tied to the date the daughter completes her degree or decides to no longer attend college out of state. The support order must be remanded to set a termination date, but is otherwise affirmed. Accordingly, this assignment of error is sustained in part and overruled in part. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT WHEN IT ORDERED APPELLANT TO PAY THREE THOUSAND DOLLARS ($3,000) AS TO THE ATTORNEY FEES OF DEFENDANT-APPELLEE, WHERE BOTH APPELLEE AND APPELLANT EARN NEARLY IDENTICAL INCOMES AND APPELLANT'S EXPENSES EQUAL HIS INCOME AND APPELLEE'S INCOME EXCEEDS HER EXPENSES AND NO CONSIDERATION WAS GIVEN TO TAX CONSEQUENCES AND APPELLEE EXTENDED THE TIME NECESSARY FOR TRIAL THROUGH FINANCIAL MISCONDUCT. An award of attorney fees as additional spousal support is appropriate if the recipient of the award has a need for such award and the payor spouse has the ability to pay. R.C. 3105.18(H), Farley v. Farley (1994), 97 Ohio App.3d 351. The trial court must consider the parties' relative ability to pay attorney fees, based on the R.C. 3105.18(C)(1) factors, such as income, earning ability and assets and liabilities. Farley, supra, Birath v. Birath (1988), 53 Ohio App.3d 31. If there is no evidence one spouse has more ability to pay than the other, an award of attorney fees is inappropriate. Farley, supra. In this case, the appellant's income exceeded appellee's by $4,000 per year. Appellant's expenses equaled his income, while -8- appellee's expenses exceeded her income. Appellee has greater debts, but also considerably greater assets. The trial court could conclude from this evidence that appellee was in need and appellant had more ability to pay. The trial court did not abuse it's discretion in awarding attorney fees. See Birath, supra. Although appellee only presented bills for $2,332.88, these bills did not include trial preparation or representation at trial. Appellee requested $5,863.31 in fees in her brief in lieu of closing argument. The award of $3,000 was not unreasonable. The record does not support appellant's assertion that appellee caused considerable delays in trial by the errors on her income and expense statement. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT WHEN IT ORDERED APPELLEE TO PAY APPELLANT THE SUM OF FOUR THOUSAND NINE HUNDRED TWENTY SEVEN DOLLARS AND FIFTY CENTS ($4,927.50) FOR APPELLANT'S INTEREST IN THE MARITAL RESIDENCE WHICH HAD A TAX VALUE OF SEVENTY EIGHT THOUSAND FIVE HUNDRED DOLLARS AND AWARDED APPELLEE NET ASSETS WITH A VALUE OF SEVENTY SEVEN THOUSAND EIGHT HUNDRED DOLLARS ($77,800) AND AWARDED APPELLANT NET DEBT IN THE AMOUNT OF FOURTEEN THOUSAND FOUR HUNDRED DOLLARS ($14,400). Based on the facts of this case, the trial court did not abuse its discretion in finding the home was appellee's separate property and did not transmute into marital property. See R.C. 3105.171(A) -9- (6)(a), Kuehn v. Kuehn (1988), 55 Ohio App.3d 24. The trial court did not err in awarding more marital assets over liabilities to appellee. The court is not required to evenly divide the property. Cherry v. Cherry (1981), 66 Ohio St.2d 348. Appellant contends the appreciation on the home was marital property. Marital property includes appreciation on separate property due to the labor, monetary or in-kind contributions of either or both spouses that occurred during the marriage. R.C. 3105.171(A)(3)(a)(iii). Appreciation due to the expenditure of marital funds and labor, and not purely the result of a change in market value, is marital property. Worthington v. Worthington (1986), 21 Ohio St.3d 73. Passive income and appreciation acquired on separate property is separate, not marital, property. R.C.3105.171(A)(6)(a)(iii). Appellant contends the appreciation in the value of the residence was due to his work on the home and mortgage payments. There was testimony appellant did not perform the work on the home. Additionally, the trial court could have found the work amounted to repairs and did not result in appreciation of the home. Appellant did contribute marital funds to increase the equity in the home. The trial court found that the increase in the equity of the home that occurred during the marriage as a result of the reduction in outstanding mortgage principal was a marital asset. The trial court also should have found that part of the appreciation that occurred during the marriage as a result of the increase in the fair market value of the home was a marital asset. -10- See Landis v. Landis (Feb. 23, 1994), Lorain App. No. 93CA005568, unreported, Nine v. Nine (March 1, 1995), Summit App. No. 16625, unreported. Part of the investment in the home was separate property of the wife, while part of the investment was made with marital property. The trial court should compute the marital and separate portions of the appreciation as follows: Separate Investment of wife Separate --------------------------- * Total appreciation = Property Total Investment during the marriage of wife Investment of Marital Funds --------------------------- * Total appreciation = Marital Total Investment during the marriage Property Total Investment = Separate Investment of Wife + Investment of Marital Funds The investment of marital funds are the mortgage payments made during the marriage of $9,855.63. The separate investment of the wife is the value of the property on the date the parties were married. See Nine, supra. Accordingly, this assignment of error is sustained insofar as part of the appreciation during the marriage was marital property. The decision of the trial court is reversed as to the amount and duration of spousal support and as to the appreciation on the marital home. Otherwise, the decision of the trial court is affirmed. -11- This cause is affirmed in part and reversed in part for proceedings consistent with this opinion. Costs to be divided equally between plaintiff-appellant and defendant-appellee. It is ordered that a special mandate be sent to said 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. MATIA, DAVID T., P.J., and McMONAGLE, TIMOTHY E., J., CONCUR. JOSEPH J. NAHRA 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 .