COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70300 LAWRENCE J. PARR : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION MARY LOU PARR, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: MARCH 6, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE DOMESTIC RELATIONS DIVISION COURT OF COMMON PLEAS CASE NO. D-214110 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: BARBARA A. BELOVICH (#0034183) JULIA R. SULLIVAN (#0034094) 5638 Ridge Road Parma, Ohio 44129 For Defendants-Appellees: JOYCE E. BARRETT (#0006801) 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - LEO M. SPELLACY, J.: Plaintiff-appellant Lawrence Parr ("appellant") appeals from the judgment of the trial court granting a divorce to appellant and defendant-appellee Mary Lou Parr ("appellee"). Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED BY FINDING THE ANTENUPTIAL AGREEMENT INVALID. II. THE TRIAL COURT ERRED IN ITS DETERMINATION OF THE DURATION OF THE MARRIAGE. III. THE TRIAL COURT ERRED BY ADDING THREE YEARS TO THE MARITAL PORTION OF MR. PARR'S PENSION. IV. THE TRIAL COURT ERRED BY NOT CHARACTERIZING MRS. PARR'S PENSION AS MARITAL PROPERTY AND BY NOT OFFSETTING IT AGAINST MR. PARR'S PENSION. V. THE TRIAL COURT ERRED IN NOT FINDING THAT MRS. PARR'S FORMER ESOP AMERITECH SHARES WERE MARITAL PROPERTY. VI. THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE TAX CONSEQUENCES OF THE PROPERTY AWARD AND THE LIQUIDITY OF THE ASSETS. VII. THE TRIAL COURT ERRED IN DETERMINING THAT THE VALUE OF MR. PARR'S PENSION WAS $440,635.00. VIII. THE TRIAL COURT ERRED IN FINDING THAT MR. PARR WAS IN CONTEMPT REGARDING THE SCUDDER WITHDRAWALS. IX. THE TRIAL COURT ERRED IN FINDING THAT THE FAIR MARKET VALUE OF THE MARITAL RESIDENCE WAS $85,000.00 AND THAT THE EQUITY WAS $61,500. X. THE TRIAL COURT ERRED IN FINDING THAT VARIOUS ASSETS WERE MARITAL PROPERTY BECAUSE OF COMMINGLING. XI. THE TRIAL COURT ERRED BY INCORRECTLY INCLUDING MR. PARR'S SOCIAL SECURITY INCOME FOR SUPPORT CALCULATIONS. - 3 - XII. THE TRIAL COURT ERRED IN ITS TREATMENT OF THE CHILD'S SOCIAL SECURITY INCOME FOR CHILD SUPPORT PURPOSES. XIII. THE TRIAL COURT ERRED IN AWARDING $1,000.00 PER MONTH AS SPOUSAL SUPPORT TO MRS. PARR. XIV. THE TEMPORARY SUPPORT AWARD SHOULD BE REDUCED BY THE AMOUNT OF THE TELEPHONE BILL. XV. THE TRIAL COURT ERRED IN AWARDING $10,000 TO MRS. PARR FOR ATTORNEY'S FEES. Finding appellant's appeal to have merit in part, the judgment of the trial court is affirmed in part, and reversed in part, and remanded. The parties were married on August 22, 1985. While no children were born of the marriage, appellant had six children from a previous marriage and appellee had one child from a previous marriage. In February 1986, appellant adopted appellee's minor son, Michael A. Parr. At the time of their marriage, both parties worked for Ohio Bell, now known as Ameritech. Appellee continued to work for Ohio Bell until 1989, when, due to a disability, she was forced to retire. Appellant worked for Ohio Bell until December 31, 1991, when he was offered early retirement. Prior to their marriage, the parties entered into an antenuptial agreement. The antenuptial agreement listed the separate property of the parties and each party agreed to relinquish any claim or interest in the other's separate property. - 4 - In April 1988, appellant moved out of the marital residence and into his own apartment. The parties, however, continued to act in a manner consistent with being married through 1993. On October 22, 1991, appellant filed a complaint for divorce. On November 17, 1993, a hearing commenced before a magistrate appointed by the trial court. The matter was heard over nine separate days and concluded in October 1994. The magistrate issued her report and recommendations on April 28, 1995. Both parties filed objections to the report. The trial court sustained both parties' objections and subsequently approved the recommendation of the magistrate per its modifications. (Judgment Entry, January 4, 1996). I. In his first assignment of error, appellant asserts that the trial court erred in determining that the antenuptial agreement entered into by the parties was invalid. In particular, appellant asserts that where parties to an antenuptial agreement intend that each shall take nothing under the terms of the agreement, other than limited statutory rights, itemization of the parties' assets, without showing the specific values or amounts, is sufficient disclosure and the agreement is valid and enforceable. It is well settled in Ohio that public policy allows the enforcement of prenuptial agreements. Fletcher v. Fletcher (1994), 68 Ohio St.3d 464, citing Gross v. Gross (1984), 11 Ohio St.3d 99, paragraph one of syllabus. "Such agreements are valid and - 5 - enforceable (1) if they have been entered into freely without fraud, duress, coercion, or overreaching; (2) if there was full disclosure, or full knowledge and understanding of the nature, value, and extent of the prospective spouse's property; and (3) if the terms do not promote or encourage divorce or profiteering by divorce." Id. at 466; Gross at 108. Furthermore, the antenuptial agreement must meet a general test of fairness, and the parties are under a mandatory duty to act in good faith with a high degree of fairness and disclosure of all circumstances which materially bear on the antenuptial agreement. Gross, supra. In the case sub judice, the parties entered into an antenuptial agreement six (6) days prior to being married. The parties agreed that "certain property owned currently or in the future by the other party . . . shall be free from any and all rights and claims which he or she might otherwise acquire as spouse . . . ." Though the antenuptial agreement provided a list of the various assets held separately by each of the parties, the agreement did not provide an approximate valuation of the financial worth of the assets. The first element of the Gross test requires that the agreement be freely entered into without fraud, duress, coercion, or overreaching. Those terms are defined according to their generally accepted meanings. Gross, supra at 105. "The burden of proving fraud, duress, coercion or overreaching, however, remains with the party challenging the agreement." Fletcher, supra at 467. - 6 - In the present case, the trial court initially found the third element of Gross to be inapplicable. Next, the trial court addressed appellee's contention that she did not enter into the agreement freely and that she was without counsel, thus making the agreement void where it provided disproportionately less than she would receive under an equitable distribution. See, Fletcher. The trial court, however, found that appellee had ample opportunity to consult with counsel, that the parties had been discussing the antenuptial agreement long before it was signed, and that appellee had input into the agreement. Thus, the trial court determined that appellee did not meet the burden of establishing that there was overreaching. (Report and Recommendation of the Referee, April 28, 1995; Judgment Entry, January 4, 1996). The trial court next considered whether the antenuptial agreement met the second element of Gross, full disclosure. The trial court, in applying a general test of fairness, determined that the antenuptial agreement could not be enforced because appellant failed to meet his burden of proving that he fully disclosed the value of his property to appellee. In the case at bar, as stated supra, there was no statement of approximate valuation of appellant's listed assets in the antenuptial agreement. Pursuant to the language of the second element of the Gross test, as well as appellee's testimony that she did not know the value of any of appellant's assets at the time she married him, the trial court did not err as a matter of law in - 7 - determining that the antenuptial agreement was void and unenforceable. Accordingly, appellant's first assignment of error is overruled. II. Appellant, in his second assignment of error, contends that the trial court erred in determining the duration of the marriage. The manner in which marital property is to be divided in divorce proceedings is set forth in R.C. 3105.171. In dividing marital property, one of the first steps is to determine the duration of the marriage. The definition of "duration of the marriage" is set forth in R.C. 3105.171(A)(2) as follows: (2) "During the marriage" means whichever of the following is applicable: (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. Pursuant to the language of the above statute, the trial court is to consider the "duration of the marriage" from the date of the marriage through the date of the final hearing, unless such dates would be inequitable to value the marital property in this manner. - 8 - In the case sub judice, the trial court determined that the duration of the marriage was from the date the parties were married, August 22, 1985, until the first day of trial November 17, 1993. Appellant, however, contends that the duration of the marriage was either from the date the parties were married, August 22, 1985, until appellant moved out of the marital residence in September 1988, or from the date the parties were married until September 29, 1988, the day appellee initially filed for divorce. Both appellant and appellee testified before the Referee. The testimony revealed that the parties continued to spend holidays, birthdays, special occasions and vacations together up through 1993. As a result of this testimony, the trial court determined that the parties continued to interact in a manner inconsistent with termination of the marriage, and determined that the "duration of the marriage" was from August 22, 1985, until November 17, 1993. The decision to use the first day of trial as the valuation date or another alternative date pursuant to R.C. 3105.171 (A)(2)(a)-(b) is discretionary and will not be reversed on appeal absent an abuse of discretion. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. A review of the record in this case does not demonstrate that the trial court's decision was unreasonable, arbitrary or unconscionable. Accordingly, appellant's second assignment is overruled. - 9 - III. For purposes of this appeal, appellant's third, fourth, fifth, seventh, ninth, and tenth assignments of error will be addressed together as each addresses the trial court's division of the parties' marital property. The trial court has broad discretion in making an equitable division of property. Reed v. Reed (February 15, 1996), Cuyahoga App. No. 69161, unreported, citing 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. Id., citing Briganti v. Briganti (1984), 9 Ohio St.3d 220. A reviewing court may not reverse the trial court's property 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 unconscionable. Blakemore, supra. In the present action, appellant, in his third and seventh assignments of error contends that the trial court erred in calculating the marital portion of appellant's Scudder Pension Fund. In particular, appellant, in his third assignment of error, contends that the trial court should not have included the additional three years of service appellant received in 1991 as an incentive for retiring early from Ohio Bell. Appellant, in his seventh assignment of error, contends that the trial court also erred in determining the value of appellant's pension fund on - 10 - September 30, 1993, to be four hundred forty thousand six hundred thirty-five dollars ($440,635.00). A complete review of the record reveals that sufficient evidence was presented to support the conclusions of the trial court. Appellant testified that he had worked for Ohio Bell since 1955, and in December 1991, he elected to take early retirement. (Tr. 57). Appellant further testified that as an incentive for retiring early, three years of additional service was credited to his retirement plan. (Tr. 57). Thus, although appellant actually only worked 36.22 years for Ohio Bell, his pension fund reflected that he had worked 39.22 years. After retiring, appellant testified that he took the Ohio Bell Pension Benefit in one lump sum and placed it into the Scudder International Bond Fund. (Tr. 106). The trial court determined that appellant's pension fund was marital property subject to equitable distribution under the guidelines set forth in R.C. 3105.171. Next, the trial court, based on testimony presented, determined that the value of appellant's pension fund on September 30, 1993, was $440,635.00. (Tr. Vol. I, 245). Based on this amount, and after hearing the testimony of each party's expert witness, the trial court decided to apply the coverture method to determine the marital portion of the Scudder pension fund. According to appellant's expert, the coverture method takes the number of years in the plan married over the total number of - 11 - years the individual was in the plan. (Tr. Vol. I, 39.). The percentage received from this division is then multiplied by the total amount of money in the plan. The result of this multiplication is the marital portion to be distributed. (Tr. Vol. I, 39). Thus, the magistrate, in accordance with appellant's expert's testimony, added three years to the total number of years appellant actually worked for Ohio Bell and three years to the total number of years the parties were married while appellant was with Ohio Bell. The trial court then computed the marital portion of appellant's Scudder Fund as follows: 9.35 total years married in plan ------------------------------- = .2384% 39.22 total years in plan .2384 x 440,635.00 = $105,047.00 Applying the coverture method used by appellant's expert to the facts in the present case, the trial court, in adopting the magistrate's recommendations, determined appellee's portion of appellant's Scudder Fund to be one hundred five thousand and forty- seven dollars ($105,047.00). (See Judgment Entry, January 4, 1996; Report and Recommendation of Referee With Notice, April 28, 1995). A complete review of the record reveals that the trial court received evidence regarding the value of appellant's Scudder Fund at various time periods. (Tr. Vol. I, 245). Furthermore, appellant's expert witness testified that it would be appropriate to include the additional three years incentive, which appellant received in 1991 during the marriage, to the coverture equation. - 12 - (Tr. Vol. I, 247-248). Thus, based upon evidence presented in the record, the trial court did not abuse its discretion in adding three years to the coverture fraction, nor did the trial court err in determining that the value of appellant's pension fund on September 30, 1993, was four hundred forty thousand six hundred thirty-five dollars ($440,635.00). Accordingly, appellant's third and seventh assignments of error lack merit. Appellant, in his fourth assignment of error, contends that the trial court erred both in not characterizing appellee's pension as marital property and by failing to offset appellee's pension against his pension. In 1989, appellee became disabled due to a post-traumatic stress disorder and retired from her employment at Ohio Bell. As a result, appellee began drawing on her disability pension. Appellee began receiving seven hundred and nine dollars ($709.00) per month from her Ohio Bell disability pension plan and one thousand six hundred and four dollars ($1,604.00) per month in Social Security disability benefits. In the present case, appellant claims that the disability benefits appellee receives are marital property and should have been offset against his pension plan. In Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 178, the Ohio Supreme Court stated, "[t]he general rule is that pension or retirement benefits earned during the course of the marriage are marital assets and a factor to be - 13 - considered * * * in the division of property." This rule was later codified in R.C. 3105.171 (A)(3)(a)(ii) which became effective January 1, 1991. However, in the third footnote to the text of the opinion, the court in Hoyt listed several exclusions to this general rule, including social security benefits and disability retirement pay. Hoyt, supra at 178. Given the clear re-affirmation of the general exclusion of disability retirement benefits by the Supreme Court in Hoyt, we overrule appellant's fourth assignment of error, and find that the trial court did not abuse its discretion in excluding appellee's disability pension as a marital asset in the division of property. Accordingly, appellant's fourth assignment of error lacks merit. In his fifth assignment of error, appellant contends that the trial court erred in not finding that appellee's former ESOP Ameritech shares were marital property. In the case sub judice, both parties, prior to the marriage, invested in the Ohio Bell ESOP Ameritech Ownership Plan. At trial, appellee testified that she had seven thousand three hundred and seventy-nine dollars ($7,379.00) in her Ameritech ESOP account prior to the marriage. (Tr. Vol. III, 760). Appellee further testified that there was nothing acquired after the marriage relating to the ESOP account. Appellant had also invested in the Ohio Bell ESOP Ameritech Ownership Plan. However, appellant was unable to provide the trial court with the value of his investment at the time the parties were - 14 - married. (Tr. 105). Further, appellant testified that he rolled over his benefit into his Ameritech Savings Plan after Ohio Bell terminated the ESOP plan. (Tr. 105). Appellant contends that the trial court improperly included as part of his Ameritech Savings Plan the money which he had rolled over from his ESOP investment, but failed to include appellee's ESOP investment as part of her Ameritech Savings Plan. A complete review of the record reveals that appellee placed the money, which she invested in the ESOP plan prior to the marriage, in a separate savings account, while appellant placed the money which he earned from his investment into his Ameritech Savings plan. As a result, appellant's investment lost its identity as separate property. We find that the trial court did not abuse its discretion in finding that, while the benefits appellee received from her ESOP investment retained their identity as separate property, the benefits appellant received from his investment in the ESOP plan became so commingled in his Ameritech Savings plan that it was impossible to separate appellant's ESOP investment benefits from the marital portion of the Savings Plan. Accordingly, appellant's fifth assignment of error is not well taken. In his ninth assignment of error, appellant asserts the trial court erred in finding the fair market value of the marital residence to be eighty-five thousand dollars ($85,000.00) and the - 15 - equity in the marital residence to be sixty-one thousand five hundred dollars ($61,500.00). In the present case, the parties, at the time of trial, stipulated that the fair market value of the marital residence at 5587 Treetop Court was eighty-five thousand dollars ($85,000.00) with a mortgage balance of twenty-three thousand five hundred dollars ($23,500.00). (Tr. 79). Based on the foregoing, the trial court determined the equity from the marital residence was sixty- one thousand five hundred dollars ($61,500.00). No other evidence was presented regarding the value of the marital residence. The normal presumption of a bench trial applies in this instance. Particularly, it is presumed that the trial court " * * * considered only the relevant, material, and competent evidence in arriving at its judgment unless it appears to the contrary." Brett v. Brett (March 7, 1991), Cuyahoga App. No. 58001, unreported; citing State v. Post (1987), 32 Ohio St.3d 380, 384. It is therefore presumed that the trial court took into account the stipulated market value of the home at the time of trial. Furthermore, a review of the record reveals that the trial court was presented with evidence of the value of the home at the time of purchase, the amount of the down payment and the mortgage balance on the home at the time of trial. (Tr. 78-79). The trial court's judgment clearly does not indicate that the court failed to consider the "relevant, material and competent" - 16 - evidence which it had before it, i.e. the stipulation. Id. Accordingly, appellant's ninth assignment of error is overruled. Appellant's tenth assignment of error alleges that the trial court erred in finding that various assets were marital property because of commingling. R.C. 3105.171(A)(6)(b) states that "[t]he commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable." R.C. 3105.171(A)(3)(a)(iii), however, provides that marital property includes "* * * all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage." In the case sub judice, appellant, prior to the marriage, owned various assets jointly with a business partner, Irene Copeland. Appellant and Ms. Copeland continued their relationship as business partners during the marriage as well. Appellee contends, and appellant denies, that the separate property owned jointly by appellant and Irene Copeland increased in value during the marriage, and that marital funds were so commingled in these separate assets that the assets lost their separate identities and are subject to the trial court's division of marital property. Based upon evidence submitted at trial and the testimony of the parties, the trial court was able to trace the identity of the - 17 - assets owned jointly between appellant and Irene Copeland. The trial court, however, found it difficult to determine what, if any, increases in the value of the separate property can be attributed to the marriage. (Report and Recommendation of Referee with Notice, April 28, 1995; Judgment Entry, January 2, 1996). As a result, the trial court, based upon the evidence presented, determined that certain assets owned jointly between appellant and Irene Copeland became so commingled with appellant and appellee's marital estate that the marital portion of these assets were subject to equitable division. Subsequently, the referee traced funds which had been transferred from the parties' joint marital bank accounts into accounts owned jointly by appellant and Irene Copeland. The following transactions originating from the parties' marital bank accounts were found by the trial court to be marital property: 1) Joint First National Bank Account - $7,691.00 transferred from appellant's marital bank account. 2) Joint Merrill Lynch Account - $14,445.00 transferred from appellant's marital bank account. 3) Mt. Vernon I and II - $16,057.00 transferred from appellant's marital bank account. 4) Joint Charter One Bank Account - $2,500.00 transferred from appellant's marital bank account. 5) Joint Merrill Lynch Account - $16,850.00 transferred from appellant's individual Merrill Lynch Account. - 18 - Based on the foregoing, the trial court was able to trace a total of fifty-seven thousand five hundred and forty-three dollars ($57,543.00) in marital funds from the parties' joint marital bank account to the various jointly held assets. The record reveals that the findings of the magistrate set forth above were supported by evidence adduced at trial. Thus, the trial court did not abuse its discretion in determining the value of the marital portion of these joint assets regarding the extent to which marital funds were used to enhance them. Accordingly, appellant's tenth assignment of error is overruled. IV. Appellant, in his sixth assignment of error, maintains that the trial court erred in failing to consider the tax effects of the property award and the liquidity of the assets. The record reveals that appellant, pursuant to Civ.R. 53, filed objections to the report of the referee on September 19, 1995. A complete review of appellant's objections, however, fails to reveal that appellant mentioned the failure of the magistrate to consider the tax consequences of the property award and the liquidity of the assets. Civ.R. 53(E)(6) states, in pertinent part, the following: On appeal, a party may not assign as error the court's adoption of a referee's finding of fact unless an objection to that finding is contained in that party's written objections to the referee's report. - 19 - The mandate set forth in Civ.R. 53(E)(6) was upheld by the court in Proctor v. Proctor (1988), 48 Ohio App.3d 55, and reaffirmed by this court in Krause v. Krause (April 27, 1995), Cuyahoga App. No. 66809, unreported. In particular, Proctor held that: * * * an assignment of error based upon a trial court's adoption of a Referee's finding of fact is waived unless an objection to that finding of fact is contained in the party's written objections to the Referee's report. Proctor, supra at 58. As stated supra, appellant's objections to the report and recommendations of the referee fail to reveal that appellant objected to the magistrate's failure to consider the tax effects of the property award and the liquidity of assets. Thus, appellant has waived his right to raise it as an assignment of error. Accordingly, appellant's sixth assignment of error is overruled. V. In his eighth assignment of error, appellant contends that the trial court erred in finding him in contempt regarding various withdrawals made from his Scudder pension fund. A complete review of the record, however, does not reveal that the trial court issued an order of contempt for withdrawals made by appellant from his Scudder pension fund. Accordingly, appellant's eighth assignment of error is overruled. - 20 - VI. In his eleventh assignment of error, appellant contends that the trial court erred when it incorrectly included appellant's social security income for support calculations. In particular, appellant contends that the trial court erred in finding that temporary child support should be based upon the inclusion of appellant's social security income which he began receiving in September 1994. In the present case, appellee filed a motion for support pendente lite on November 5, 1991. The record reveals that from the time of filing the complaint, through June 30, 1993, appellant paid all of the fixed expenses at the marital residence which included the mortgage, utilities and maintenance fee totaling approximately eight hundred dollars ($800.00) per month. In July 1993, appellant ceased paying everything but the mortgage payment. R.C. 3113.215 (B)(1) creates a rebuttable presumption that the amount of child support calculated under the guidelines is the correct amount. A trial court's deviation from the Child Support Guidelines will not be disturbed on appeal unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore, supra. In the present case, the trial court, for purposes of calculating appellant's temporary child support obligation, set forth two separate amounts to be paid by appellant for two separate time periods. First, the magistrate determined that appellant's - 21 - gross income, based on testimony given by appellant at trial, from July 1, 1993, through December 31, 1993, was fifty-six thousand seven hundred and fifty-five dollars ($56,755.00) based upon the following items of income: $197.00 (wages); $1,674.00 (unemployment compensation which stopped sometime in 1993); $11,892.00 (capital gains); $2,372.00 (interest and dividend income); $11,220.00 (social security); and $29,400.00 (monthly annuity). Next, the magistrate, excluding appellant's wages earned in 1993, unemployment compensation which ended in 1993, and the capital gains which appellant received from the sale of real property in Florida in 1993, determined that appellant's gross income from January 1, 1994, through March 31, 1995, was forty-two thousand nine hundred ninety-two dollars ($42,992.00). Thus, based upon the findings of the magistrate, the trial court incorporated into its final decree a retroactive award of temporary child support in the amount of five hundred and eighty-one dollars ($581.00) per month from July 1, 1993, through December 31, 1993. For the period of January 1, 1994, through March 31, 1995, appellant was required to pay temporary child support in the amount of four hundred and sixty-five dollars ($465.00) per month. Appellant, however, argues that the trial court improperly included his social security benefits in his gross income from July 1, 1993, through September 1, 1994. A complete review of the record supports appellant's contention that he did not begin receiving social security benefits until September 1, 1994. (Tr. - 22 - Vol. I, 130). Thus, the trial court's inclusion of such benefits from July 1, 1993, through August 31, 1994, was an abuse of discretion. Accordingly, appellant's eleventh assignment of error is sustained and this issue is remanded. VII. In his twelfth assignment of error, appellant asserts that the trial court erred in its treatment of the minor child's social security income for child support purposes. In the present action, appellee, due to a psychological disability, retired from her employment with Ohio Bell in 1987. Since appellee's retirement on disability, she has drawn a disability pension from Ohio Bell of seven hundred and six dollars ($706.00) per month, social security for herself of one thousand one hundred and nine dollars ($1,109.00) per month, and social security benefits for her minor child of five hundred and forty dollars ($540.00) per month. Subsequently, the trial court determined appellee's annual net disposable income to be twenty- eight thousand two hundred and sixty dollars ($28,260.00) per year. For purposes of child support calculations, however, the trial court determined that appellee's income was twenty-one thousand seven hundred and eighty dollars ($21,780.00) per year. Appellant contends that the trial court abused its discretion by failing to offset his child support obligation with the disability payments received on behalf of the minor child as a - 23 - result of appellee's disability. In support of his argument, appellant cites the eleventh district case, Previte v. Previte (1994), 99 Ohio App.3d 347. Previte was a case of first impression, in that, the typical scenario involves the obligor parent (non-custodial parent) as the one receiving disability benefits and in whose name the minor child also received benefits. In Previte, as in the present case, however, it was the obligee (custodial parent) who was receiving disability benefits and in whose name the minor child also received benefits. The court in Previte held that, "the proper method is to deduct all or part of the Social Security benefits received on behalf of the child from the guideline-determined necessary child support predicated upon the best interests of the child and equity to both parents." Previte, supra at 351. In the case sub judice, the trial court declined to follow the rationale of Previte and held that the child's Social Security Disability Income should be netted off only his mother's support obligation insofar as it is due to her disability and not the child's -- it is in fact a substitute for income she would have were she not disabled. (Judgment Entry, February 1, 1996). Furthermore, the trial court determined that appellant shall pay to appellee as and for child support the sum of five hundred and ten dollars ($510.00) per month * * *. (Judgment Entry, February 1, 1996). Appellant's support obligation, as determined by the magistrate, and adopted by the trial court, however, reflects a - 24 - deviation from the child support schedule and includes, in addition to appellant's support obligation, the monthly Social Security received by the minor child. The court below was authorized by R.C. 3109.05(A) to order appellant to pay child support. To determine the total amount of support to which the minor child was entitled, as well as the percentages of that total for which each parent was responsible, the trial court, used the calculations called for in the Child Support Guidelines. Division V of the Guidelines allows the court to use broad discretion in deviating from the Guidelines where strict application would be inequitable to the child or either of the parents. In order for a court to deviate from the support calculated pursuant to the schedules and worksheets, R.C. 3113.215(B)(1) and (B)(2) unequivocally require it to enter in its journal the determination that the calculated support "would be unjust or inappropriate and would not be in the best interest of the child. . . ." Moreover, the Supreme Court of Ohio has stated that in matters concerning child support, an abuse of discretion standard will be applied when reviewing the order on appeal. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. In the present case, the trial court, through its adoption of the magistrate's report, expressed factual findings which would support the conclusion that the calculated support amount was "unjust or inappropriate" and would not be in the "best interest" of the minor child. In particular, the trial court's findings - 25 - reflect that the minor child nearly doubled his weight since 1991, wears size 16 clothes and requires special order shoes costing $150.00-$200.00 per pair, is expected to undergo surgery for removal of excess fat tissue, is receiving counselling due, in part, to anxiety over the divorce, and has special food and clothing needs exceeding thirteen hundred dollars ($1,300.00) per month. Based on the foregoing, we find that the trial court did not abuse its discretion in declining to follow the rationale of Previte, nor did the trial court abuse its discretion in deviating from the scheduled amount of appellant's child support obligation. Accordingly, appellant's twelfth assignment of error is overruled. VIII. In his thirteenth assignment of error, appellant contends that the trial court erred in awarding appellee one thousand dollars ($1,000.00) per month in spousal support. R.C. 3105.18 provides that, during the pendency of a divorce proceeding, a court may award reasonable spousal support to either party. The purpose of a temporary spousal support order is to provide an economically disadvantaged spouse a means of maintaining herself or himself during the pendency of the proceeding. See R.C. 3105.18(B); Soley v. Soley (1995), 101 Ohio App.3d 540; Kahn v. Kahn (1987), 42 Ohio App.3d 61, 68. In the present case, appellee requested spousal support pendente lite retroactive to November 25, 1991. The magistrate - 26 - found that appellee's pretrial statement showed monthly expenses, excluding the mortgage payment on the marital residence, to be two thousand six hundred and seventy-three dollars ($2,673.00). The magistrate determined that appellee failed to adequately support her claimed expenses which amount to twenty-three thousand dollars ($23,000.00) spent over and above her net income of twenty-eight thousand dollars ($28,000.00). In light of the foregoing, the trial court, taking into consideration appellee's necessary living expenses, ordered appellant to pay temporary support in an amount of five hundred and sixty dollars ($560.00) per month in addition to the mortgage payment on the marital residence of four hundred forty dollars ($440.00). The trial court, however, ordered that appellant should be given credit for one-half of the monthly mortgage payment. No permanent spousal support was awarded to the appellee by the trial court. Whether spousal support is to be awarded and the amount of that support is within the discretion of the court and will not be overturned absent an abuse of discretion. Cherry, supra at 352. Upon review of the record in this matter, we cannot say that the trial court abused its discretion in granting spousal support. Accordingly, appellant's thirteenth assignment of error is not well taken. IX. Appellant, in his fourteenth assignment of error, contends that the trial court erred when it failed to reduce the amount - 27 - awarded as temporary spousal support by the extraordinarily large telephone bill. Ordinarily, temporary spousal and child support orders are not final appealable orders. Kelm v. Kelm (1994), 93 Ohio App.3d 686; See also Daughtry v. Daughtry (1973), 47 Ohio App.2d 195. However, the Ohio Supreme Court in Colom v. Colom (1979), 58 Ohio St.2d 245, carved out an exception to the general rule when it addressed the issue of enforcement of arrearages deriving from an order of temporary support. Specifically, the court in Colom, though recognizing that enforcement of interim orders should not be extended beyond the final decree, stated that where the trial court has made the issue of arrearages a separate portion of the final judgment, a party may seek enforcement of the arrearages resulting from violation of a temporary restraining order. Id. at 247. In the present case, the trial court did, in fact, include as an additional portion of the final judgment an order requiring appellant to pay arrearages resulting from his failure to pay both temporary child support and spousal support. Appellant's contention, however, that the trial court erred in failing to sustain his objection that the temporary support order should have been reduced due to the extraordinarily large telephone bill, is not a final appealable order. Any alleged mistakes or irregularities made in the process of calculating the temporary award can be remedied when the final support orders are issued and the ultimate rights of the parties determined. Kelm, supra at 690. - 28 - In the present case, however, the trial court did not issue a final order of spousal support. Accordingly, appellant's fourteenth assignment of error is overruled. X. In his fifteenth assignment of error, appellant contends that the trial court erred in awarding ten thousand dollars ($10,000.00) to appellee for attorney's fees. The awarding of attorney fees is within the sound discretion of the trial court. Swanson v. Swanson (1976), 48 Ohio App.2d 85, 90. Upon appeal, the only questions for inquiry are whether the factual conclusions upon which the trial court based the exercise of its discretion were against the manifest weight of the evidence or whether there was an abuse of discretion. Id. The overriding consideration, however, is the financial ability of the party, against whom the award is made, to pay. Id. at 95, citing Rivers v. Rivers (1968), 14 Ohio App.2d 120. In the instant case, the trial court determined that appellee incurred forty-one thousand one hundred and thirty-one dollars ($41,131.00) for attorney fees and expenses. Further, the trial court, in adopting the report of the referee, concluded that appellant has sufficient ability to contribute to appellee's fees; appellant's position that the parties had a valid antenuptial agreement which precluded appellee from making a claim to most - 29 - property, made discovery difficult; and that appellant, on numerous occasions, failed to provide requested documents. After reviewing the record and the trial court's journal entry, we are unable to conclude that the trial court abused its discretion in awarding an unreasonable, arbitrary or unconscionable fee. Accordingly, the award of attorney fees is affirmed. Appellant's fifteenth assignment of error is overruled. Judgment affirmed in part, reversed in part, and remanded in accordance with this opinion. - 30 - It is ordered that appellee recover of appellant one-half her costs herein taxed. It is ordered that appellant recover of appellee one-half his 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 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. JOSEPH J. NAHRA, J. CONCURS; PATRICIA BLACKMON, P.J. DISSENTS. (See Dissenting Opinion Attached) LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70300 LAWRENCE J. PARR : : Plaintiff-Appellant : : D I S S E N T I N G -vs- : : O P I N I O N : MARY LOU PARR, ET AL. : : Defendants-Appellees : : DATE: MARCH 6, 1997 BLACKMON, J., DISSENTS: I respectfully dissent from the Majority opinion. The issue in this case is whether the element of value as stated in Gross v. Gross (1984), 11 Ohio St.3d 99 is sufficiently established when the value is defined as fair market value as this prenuptial agreement stated. The Majority opinion holds that value can only mean stated dollar value. In Gross, the court held that a prenuptial agreement is valid when "full disclosure, or full knowledge, and under- standing, of the nature, value and extent of the prospective spouse's property." Id. at 105. This means full disclosure and understanding or full knowledge and understanding of the nature, value and extent of the prospective spouse's property. Here, not only did the wife have full knowledge of the assets, she knew the extent and agreed that the value was the fair market value. She - 2 - cannot later turn around and claim ignorance simply because she did not know the actual dollar figure. Gross did not intend that result. Furthermore, the trial judge accepted the referee's belief .