COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69161 HOLLY J. REED : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION EDWARD D. REED : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE DOMESTIC RELATIONS DIVISION COMMON PLEAS COURT CASE NO. D-229096 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JILL FRIEDMAN HELFMAN (#0038846) BEHRENS & GIOFFRE CO., L.P.A. 1700 Terminal Tower Cleveland, Ohio 44113 For Defendant-Appellant: WILLIAM T. GUARNIERI (#0005038) 254 Old Arcade 401 Euclid Avenue Cleveland, Ohio 44114 - 2 - 2 SPELLACY, C.J.: Defendant-appellant Edward D. Reed ("appellant") appeals from the judgment of the trial court granting a divorce to appellant and plaintiff-appellee Holly J. Reed. Appellant assigns the following assignments of error for review: I. THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT DESIGNATED AS MARITAL PROPERTY $7,000 FROM HUSBAND'S LIFE INSURANCE POLICY. II. THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT OFFSET HUSBAND'S EQUITY IN THE HOUSE BY $4,340.00 INSTEAD OF $3,500.00. III. THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT AWARDED PLAINTIFF SPOUSAL SUPPORT OF $1,900.00 PER MONTH PLUS POUNDAGE BASED ON A GROSS YEARLY INCOME FOR HUSBAND OF NEARLY $75,000.00 INSTEAD OF $68,000.00. IV. THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT AWARDED PLAINTIFF SPOUSAL SUPPORT OF $1,900.00 PER MONTH PLUS POUNDAGE WHEN IT FAILED TO CONSIDER HUSBAND'S CONTRIBUTION TO WIFE'S EDUCATION AND EARNING ABILITY. V. THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT AWARDED PLAINTIFF SPOUSAL SUPPORT OF $1,900.00 PER MONTH PLUS POUNDAGE WHEN IT FAILED TO CONSIDER WIFE'S EARNING ABILITY. VI. THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT AWARDED PLAINTIFF SPOUSAL SUPPORT OF $1,900.00 PER MONTH PLUS POUNDAGE IN PART AS PUNISHMENT OF HUSBAND. Finding none of the assignments of error to have merit, the judgment of the trial court is affirmed. - 3 - 3 I. The parties were married on January 24, 1969. Throughout the course of the marriage, appellant provided the support for the family and household. At the time of trial, appellant testified he was a senior consultant with Sedlak Management Consultants, earning a base salary of $68,000.00. Appellant had been employed at Sedlak since 1977. After the first couple years of his employment, appellant traveled extensively for Sedlak. He received additional compensation of ten per cent of his base pay plus all of his living expenses. Appellant claimed the business had changed so that he no longer spent extended periods on the road and did not receive additional compensation over his base salary. Holly Reed was not employed for the first twenty years of the marriage. She was responsible for maintaining the household and raising the couple's now emancipated three children. Holly Reed worked for Hough Bakeries Catering on a seasonal basis, earning between $3,000 to $5,000 a year. She studied nursing part-time at Cuyahoga Community College. Holly Reed was hired by Parma Community Hospital as a registered nurse in 1989. She worked part- time or twenty hours in a two week period. Holly Reed has chronic varicose veins making standing for a length of time difficult and uncomfortable. She never sought full time employment due to the difficulties with her legs. Reed earns approximately $22,000 a year. - 4 - 4 The Reeds separated on July 5, 1993, when appellant moved out of the marital home. On October 13, 1993, Holly Reed filed a complaint for divorce. Appellant filed an answer and counterclaim. The case came to trial on March 13 and April 17, 1995. The trial court granted the divorce and divided the property. Spousal support was awarded to Holly Reed in the amount of $1,900.00 per month. II. In his first assignment of error, appellant contends the trial court abused its discretion in designating the proceeds from a life insurance policy as marital property. The policy was purchased by appellant's parents when he was a child. Appellant surrendered the policy for cash about a month before the Reeds separated. On June 8, 1993, appellant deposited the $7,000 proceeds in his bank account. He testified he used the money to purchase a ring for his friend, Marilyn Powell, for personal travel and for living expenses. Appellant claimed the policy was given to him prior to his marriage. Holly Reed testified the policy was given to both of the Reeds six or seven years earlier to be used in their retire- ment or later in their lives. The trial court has broad discretion in making an equitable division of property. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64. A trial court has the discretion to do what is equitable under the facts of each case. Briganti v. Briganti (1984), 9 Ohio St.3d 220. A reviewing court may not reverse the trial court's property - 5 - 5 division unless it constitutes an abuse of discretion. Cherry v. Cherry (1981), 66 Ohio St.2d 348. An abuse of discretion implies that the court's attitude is unreasonable, arbitrary or unconscion- able. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Any real or personal property acquired by one spouse prior to marriage can be separate property. R.C. 3105.171(A)(6)(a)(ii). Any gift of real or personal property made after the date of marriage must be proven by clear and convincing evidence to have been given to only one spouse to be considered separate property. R.C. 3105.171(A)(6)(vii). Appellant argues the proceeds from the insurance policy should be considered separate property whether the gift of the policy was made before or after the marriage because both he and Holly Reed testified the policy was given to him only. The record does not support appellant's contention. Only appellant testified that the policy was given to him before his marriage. Holly Reed testified the policy was given to both of them five or six years earlier. Therefore, there was conflicting evidence as to whether the policy was given to appellant or both the Reeds. Appellant did not offer clear and convincing evidence that the policy was given to him alone. The trial court found the policy to be marital property. An appellate court is guided by the presumption that the findings of the trier of fact were correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. There was evidence the policy was - 6 - 6 given to both parties after the date of marriage. The trial court did not abuse its discretion in finding the insurance policy and its proceeds to be marital property. Appellant's first assignment of error is overruled. III. In his second assignment of error, appellant argues the trial court abused its discretion by offsetting his equity in the marital home by the proceeds from the insurance policy plus the amount spent on the ring. He asserts part of the proceeds from the insurance policy were used to purchase the ring so only the amount of the proceeds should have been debited from the amount awarded appellant. The trial court subtracted half of the amount of the insurance policy proceeds plus the cost of the ring from appellant's equity in the house. Testimony at trial revealed appellant purchased and paid $1,068.93 for a ring for his girlfriend on June 7, 1993. He deposited the $7,000 proceeds from the insurance policy on June 8, 1993. The ring was purchased before appellant deposited the insurance proceeds in his bank account. The trial court did not abuse its discretion in finding the ring was purchased with marital assets. Appellant's second assignment of error lacks merit. - 7 - 7 IV. In his third assignment of error, appellant asserts the trial court abused its discretion by awarding Holly Reed spousal support of $l,900 per month. Appellant argues the trial court should have determined his spousal support obligation using his base salary of $68,000 and not the $74,729.43 he earned in 1994. He states he did not travel in 1995 and did not earn additional compensation over his base salary. The trial court has broad discretion in fashioning spousal support. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 24. After the trial court has determined the division of property, it may award reasonable spousal support to either party. R.C. 3105.18(B). A court should be guided by the factors listed in R.C. 3105.18(C)(1) in making the award. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128. The trial court must set forth a factual basis or rationale which supports the award of spousal support. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, at paragraph two of the syllabus. A reviewing court cannot substitute its judgment for that of the trial court unless, under the totality of the circumstances, the trial court abused its discretion. Holcomb, supra, at 131. Appellant first testified his base salary was $68,000 and that he did not expect to receive the additional compensation for travel and expenses as in previous years. Appellant later testified he expected his salary to be $74,000. He stated the last time he was - 8 - 8 out of town for an extended period of time was in September of 1993. Appellant admitted under further questioning that he had been on the road for an extended period of time one year later, in September of 1994. He traveled extensively for his employment every year except the first couple of years and, apparently, the year of the trial. He admitted the norm for him was not the six months prior to trial when he spent most of his time in the office. Appellant seemed unclear as to how much he expected to earn in 1995. He apparently could not remember the last time he was on the road for his job. Appellant spent years traveling and being compensated for the travel. Based on appellant's testimony, it cannot be said that the trial court abused its discretion in computing appellant's income to be $74,000 for purposes of determining spousal support. Appellant's third assignment of error is overruled. V. In his fourth assignment of error, appellant contends the trial court should have considered his contribution to his wife's education when it awarded spousal support. Holly Reed earned her nursing degree during the marriage. Appellant provided the primary financial support for the family. One of the factors to be considered by the trial court in making an award of spousal support is the contribution made by one spouse to the education, training or earning ability of the other spouse. R.C. 3105.18(C)(1)(j). What is an appropriate and - 9 - 9 reasonable award depends upon the totality of the circumstances presented to the trial court. Peck v. Peck (1994), 96 Ohio App.3d 731, 736. All of the factors listed in R.C. 3105.18(C) must be considered. The trial court's determination should not be based upon any one of those factors taken in isolation. Kaechele, supra, at paragraph one of the syllabus. Appellant argues the trial court abused its discretion in making the award because appellant's contribution to his wife's education is not mentioned in the judgment entry. The judgment entry states that Holly Reed is a registered nurse. Holly Reed testified she used the money she earned catering to pay for her educational expenses. Appellant could not recall the exact time frame his wife took to complete her schooling, whether she went part-time or what the course of her program was. The only evidence directly relating to the payment of Holly Reed's nursing education was that she paid for it herself. The trial court's journal entry tracks the factors listed in R.C. 3105.18(C)(1). The factors not addressed are those which are inapplicable or for which no evidence was admitted. Although appellant was the primary support for the family, the evidence regarding Holly Reed's educational expenses is that appellant did not directly pay for the costs. The trial court did consider the factors listed in R.C. 3105.18(C)(1) when making the award of spousal support. Appellant's fourth assignment of error is not well taken. - 10 - VI. In his fifth assignment of error, appellant argues the trial court did not consider Holly Reed's earning ability in making the award of spousal support. Appellant asserts Holly Reed is under- employed as she only works part-time. She has never inquired about other nursing positions which would not require her to be on her feet as much such as an administrative post at the hospital, work at a doctor's office, or a nursing position requiring less patient contact. Although there is no duty to seek employment, a trial court must consider the relative earning abilities of the parties when making an award. McCoy v. McCoy (1993), 91 Ohio App.3d 570, 582. In Addy v. Addy (1994), 97 Ohio App.3d 204, the Franklin County Court of Appeals found no abuse of discretion where the husband argued his wife limited her ability to earn money by not resigning from the union to advance at her place of employment or charge family members rent. The marriage was one of long duration. The wife, due to her age and education, had not achieved a similar earning potential to her husband and would never be fully self- supporting to the standard of living established during the marriage. The court found no requirement she resign from the union or charge her family rent. In Turner v. Turner (1993), 90 Ohio App.3d 161, the husband argued that an award of permanent spousal support was an abuse of discretion because his wife could earn more as a teacher. The court found no abuse of discretion because the - 11 - wife's health seriously impeded her employment chances along with the poor current job market for teachers in the area. In the instant case, Holly Reed testified she could work only on a part-time basis because of the problem with her varicose veins. She stated she was not qualified to seek an administrative position at the hospital. There was no evidence she could procure a nursing position which would better suit her health problems or that such a position would increase her earnings. There is no evidence Holly Reed's earning ability is more than what she currently is making other than appellant's suppositions. Appellant's fifth assignment of error lacks merit. VII. In his sixth assignment of error, appellant argues the spousal support award was made as punishment for him by the trial court. Apparently, appellant bases the argument on the award being for more than was asked for by Holly Reed. The trial court stated the award would be $1,900 per month instead of the $l,650 requested by Holly Reed because the prayer did not take into consideration the tax consequences of an order of spousal support. The award given by the trial court does take into consideration those tax consequences. There is no indication the spousal support award was made to punish appellant in any fashion or that the award was an abuse of discretion. Appellant's sixth assignment of error is overruled. Judgment affirmed. - 12 - 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 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. PATRICIA BLACKMON, J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 .