COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71929 STANLEY MARTIN, JR., : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : NATALINE MARTIN, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 22, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court -- : Domestic Relations Division : Case No. D-234903 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: L. Ray Jones David L. McArtor JONES & McARTOR P.O. Box 592 Medina, Ohio 44258 For defendant-appellee: Neal P. Lavelle 522 Leader Building Cleveland, Ohio 44114 -2- NAHRA, P.J.: Appellant, Stanley Martin, appeals the December 18, 1996 divorce judgment, granting a divorce to him and appellee, Nataline Martin. On July 26, 1994, appellant filed an action for divorce. The parties were married in 1973, and appellant left the marital residence sometime in February, 1995. The evidence presented does not identify a specific date appellant left the marital residence; however, it is uncontroverted that appellant left the home in February, 1995. On September 2, 1994, appellee filed a motion for temporary spousal and child support, which motion was granted, and appellant was ordered to pay appellee $138.00 per month in temporary spousal support and $588.87 per month in child support. The child support payment ended June 8, 1995 upon the emancipation of the parties' daughter. At that time, a new temporary spousal support order became effective requiring appellant to pay $741.41 (inclusive of poundage) per month to appellee. On May 13, 1996, the magistrate to whom this cause was assigned issued an amended magistrate's decision. Objections to the decision were filed, overruled, and the court ordered appellee to prepare a divorce judgment reflecting the magistrate's amended decision. On December 18, 1996, the court entered its divorce judgment and on February 26, 1997, made a nunc pro tunc judgment entry to correct an omission of material from the amended magistrate's decision. -3- I. Appellant's first assignment or error reads: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN ITS SPOUSAL SUPPORT AWARD OF $1,224.00 PER MONTH AS BEING APPROPRIATE AND REASONABLE, AND ABUSED ITS DISCRETION TO MAKE THE AWARD TERMINABLE ONLY ON DEATH OR RE-MARRIAGE OF APPELLEE, AND NOT RETAIN JURISDICTION. (SIC) The divorce judgment states in part: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff shall pay to the defendant as spousal support the sum of $1,224.00 per month which sum includes 2% poundage effective with the journalization of this order and subject to further order of court or until either party's earlier death or defendant's remarriage. *** (Emphasis added.) We first note that the court retained jurisdiction to modify the award of spousal support. Accordingly, that portion of appellant's assignment of error is wholly without merit. Appellant argues that the amount of spousal support is not reasonable. R.C. 3105.17 states in part: (B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section 3105.171 of the Revised Code, the court of common pleas may award reasonable spousal support to either party. *** (C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; -4- (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because he will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable. An award of spousal support is reviewed to determine if the court has abused its discretion. See, Blakemore v. Blakemore -5- (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. In Blakemore, the court stated: 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. *** Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d at 1142. (Quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149. Citations omitted.) In the amended magistrate's decision at pages 9-12, the magistrate stated: Pursuant to O.R.C. 3105.18, the Magistrate makes the following findings on the issue of spousal support: Neither party will have income from property divided, disbursed of distributed under O.R.C. 3105.171. Defendant [appellee] receives Social Security Disability which totaled $9108.00 in 1995. Social Security also makes medicare payments for her of $553.20 per year bringing her total annual income to $9661.20[.] *** Plaintiff [appellant] has been employed at Alcoa Aluminum for over twenty-five years. *** Plaintiff's income is not likely to drop below $49,000.00 and that this would be an appropriate figure to use for Plaintiff's income when considering the issue of spousal support. *** This has been a twenty-two (22) year marriage. The standard of living of the parties during the marriage appears to have been comfortably modest however their spending exceeded their income resulting in substantial debt. -6- Neither party contributed to the education, training or earning ability of the other party nor to the acquisition of a professional degree. Defendant is not seeking education, training or job experience to become qualified for employment. There was no evidence that Defendant lost income production capacity as a result of her marital responsibilities. Any lost capacity has been due to her disability. *** The Magistrate finds plaintiff's monthly expenses, which total under $1,000.00 without consideration of the monthly credit card payments, to be reasonable. *** Defendant's monthly expense, as modified herein, total $1,642.00. *** Defendant does not have income sufficient to meet her reasonable expenses. In determining that spousal support was appropriate and reasonable for appellee, the magistrate considered the applicable factors listed in R.C. 3107.18(C)(1). Additionally, the $1,200 per month award of spousal support serves to leave each party with approximately the same amount of disposable income per month. We do not find this decision to be unreasonable, arbitrary or unconscionable. Appellant's first assignment of error is not well taken. II. Appellant's second assignment of error reads: THE TRIAL COURT ERRED IN MAKING APPELLANT RESPONSIBLE FOR THE PARTIES MARITAL DEBTS WITH THE EXCEPTION OF THE MORTGAGE ON THE HOME AND ERRED IN AWARDING THE MARITAL HOME TO APPELLEE INSTEAD OF ORDERING SAME SOLD TO -7- EXTINGUISH PARTIES MARITAL DEBT, AND IMPROPERLY DETERMINED THE SUPPORT ARRERAGES UNDER THE TEMPORARY ORDERS. (SIC) The court entered a nunc pro tunc judgment entry on February 26, 1997 upon appellant's motion to correct the divorce judgment which omitted orders contained in the amended magistrate's report. A nunc pro tunc entry is a means of correcting an error in proceedings in order to ensure that the court's pronouncements accurately reflect what occurred or what the court intended. See, McKay v. McKay (1985), 24 Ohio App.3d 74, 493 N.E.2d 317. In this case, the court corrected its judgment entry to reflect that appellant is to receive a mortgage on the marital home as part of the division of property and that appellee has until June, 2003, to pay the mortgage by either sale or refinancing of the home. Appellant argues that the marital home should be immediately sold and the proceeds used to extinguish the marital debt. A court is empowered to order a marital home to be sold; however, the court is granted broad discretion to fashion an equitable division of property. See, Blakemore, supra. In this case, we cannot say that the court abused its discretion by not ordering the immediate sale of the marital home. The parties' marital debt at the time of trial was $37,676, $28,224 of which was credit card debt. A sale of the home would net the parties approximately $16,000, an amount which would leave approximately $12,000 in credit card debt. As stated in the amended magistrate's decision at page 8: Accordingly, the benefit to be derived from the partial reduction of the marital debt with the proceeds -8- of the sale of the home must be weighed against the negative aspects of selling the home: diminution of the marital estate through costs of sale, incurring of capital gains taxes, and the loss of exceptionally affordable housing for Defendant [appellee] and the parties' college age daughter who lives with Defendant on weekends and during vacations, which housing could not readily be duplicated, if at all. *** The Magistrate concludes that, on balance, there is more benefit to be gained by allowing Defendant to keep the home at least for the foreseeable future. Defendant is now age forty-eight (48). In another seven years, at age fifty-five (55), she will be able to take advantage of the one time exclusion available to individuals that age and thereby avoid paying taxes on any gain realized from an eventual sale of the home. The Magistrate concludes that Plaintiff [appellant] should be ordered to quitclaim his interest in the marital home to Defendant and that Defendant be ordered to execute a mortgage in favor of Plaintiff for his interest in the marital home in the sum of $8,523.00 representing his share of the home equity. Simple interest of 6% per year shall accrue until the home is sold which shall be no later than June 1, 2003 unless Defendant is able to refinance and pay Plaintiff off earlier. In light of the reasoning adopted by the court to delay the sale of the home for seven years, we cannot say the court abused its discretion by not ordering an immediate sale. Appellant also argues that as appellant was ordered to and did pay temporary support, the court erred by ordering the 1995 tax refund to be divided equally. R.C. 3105.17.1 provides in part: (A) As used in this section: *** (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 -9- 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 Berish v. Berish (1982), 69 Ohio St.2d 318, 320, 432 N.E.2d 183, 185, the Ohio Supreme Court stated: Equity may occasionally require valuation as of the date of the de facto termination of the marriage. The circumstancesof a particular case may make a date prior to trial more equitable for the recognition, determination and valuation of relative equities in marital assets. A court is thus accorded broad discretion in determining when a marriage ends. Id. We cannot say the court abused its discretion by not applying a de facto date for the termination of the parties marriage where no inequity is evident by ordering the tax refund for 1995 to be equally divided as marital property. Appellant also argues that the court erred by not reducing the amount of arrearage under its temporary support orders. Appellant's arrearage on temporary support was calculated to be $6,150.28. In lieu of ordering appellant to pay this arrearage, the arrearage was used to offset appellee's share of the marital -10- debt and the balance of appellee's share of the debt was granted to appellant as part of the mortgage on the home. Appellant argues that the court did not consider contributions made in support of appellee and their then minor daughter's expenses from September, 1994 through February, 1995 while he resided in the marital home. Appellee argues that because the money was not paid to the Cuyahoga Support Enforcement Agency (CSEA), any money paid should be considered a gift. R.C. 2301.36 provides in pertinent part: (A) *** Any payment of money by the person responsible for the support payments under a support order to the person entitled to receive the support payments that is not made to the child support enforcement agency in accordance with the applicable support order shall not be considered as a payment of support and, unless the payment is made to discharge an obligation other than support, shall be deemed to be a gift. *** We do not find this section of the Revised Code applicable. The issue in this case is whether the court erred by ordering the support payments as of September, 1994; not whether appellee made financial contributions to the CSEA or directly to appellant. As to this issue, we first look to the purpose of temporary support. Temporary support may be granted during the pendency of an action for divorce. R.C. 3105.18 states in part: (B) *** During the pendency of any divorce, or legal separation proceeding, the court may award reasonable temporary spousal support to either party. R.C. 3105.18 states only that an award of temporary support is to be reasonable. The statute does not provide, nor have courts provided, a specific methodology to determine when an award of -11- temporary spousal support is reasonable and how the amount of that award is to be determined. See, e.g., Office v. Office (Jan. 17, 1997), Montgomery App. No. 15298, unreported. Courts, however, have acknowledged that the purpose of temporary support is to preserve the status quo during the proceeding. DiLacqua v. DiLacqua (1993), 88 Ohio App.3d 48, 54, 623 N.E.2d 118, 122 (citing Kahn v. Kahn (1987), 42 Ohio App.3d 61, 68, 536 N.E.2d 6787, 685); Office, supra. Courts have also stated that the purpose of spousal support is to provide for the financial needs of a spouse. See, e.g., Moell v. Moell (1994), 98 Ohio App.3d 748, 649 N.E.2d 880, 993; Thomas v. Thomas (1991), 76 Ohio App.3d 482, 485, 602 N.E.2d 385, 387. An award of temporary spousal support is reviewed to determine whether the trial court abused its discretion. Gullia v. Gullia (1994), 93 Ohio App.3d 653, 665; 639 N.E.2d 822, 829. We find the trial court abused its discretion by awarding temporary support as of September 2, 1994. Testimony at both the temporary support hearing and trial indicates that from September, 1994 to February, 1995 appellant resided in the marital home and was responsible for the financial needs of the family. Appellee testified that from September, 1994 to February, 1995 she stopped contributing her income toward the payment of the marital obligations which included the mortgage, utility bills, and the credit card debt. In light of these facts, we see no reason for the court to apply its order of temporary support for that time appellant resided in the marital home as appellee demonstrated no need for further and additional financial -12- support during that time and appellant did in fact provide financial support for the family. Accordingly, appellant's second assignment of error is, in part, well taken. We remand this cause to the trial court for the limited purpose of determining the exact date appellant left the marital residence in February, 1995; calculating the amount of temporary support owed from that date; determining the amount of appellant's temporary support arrearage, if any; recalculating the amount of the mortgage appellee is to execute in favor of appellant, and modifying its orders accordingly. -13- This cause is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Costs 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. O'DONNELL, J., and JOSEPH J. NAHRA SPELLACY, J., CONCUR. PRESIDING JUDGE N.B. This entry 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(E) 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 .