COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72339 DALE S. MACKO : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION PAMELA MACKO : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 26, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Domestic Relations Division : Case No. D-241375 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: MILDRED K. SCHAD Attorney at Law York Executive II, Suite 305 6325 York Road Parma Heights, Ohio 44130-3030 For defendant-appellee: MARGARET E. STANARD Attorney at Law Reid, Berry & Stanard 1300 Illuminating Building 55 Public Square Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: Appellant appeals the trial court's decision regarding the division of marital property, the award of spousal support and the -2- award of attorney's fees. As the record indicates the trial court did not abuse its discretion in making its determination, we affirm. Appellant Dale S. Macko and appellee Pamela R. Macko were married on September 12, 1981. There were no children born during the marriage. In June 1995, appellant filed a Complaint for Divorce, Restraining Orders, Attorney's Fees, Costs and Other Equitable Relief. Appellee subsequently filed her Answer and Coun- terclaim for Divorce, Restraining Order, Alimony, Attorney's Fees, Costs and Further Equitable Relief, and then filed an Amended Answer with Counterclaim and Restraining Orders. Trial commenced March 6, 1997. Appellee first testified re- garding her history of employment. Appellee was employed by Jones, Day, Reavis & Pogue from 1989 to 1994. In 1995, she was employed by Chesrown Honda and Norris Auto Mall and she earned $28,141, with a bonus of $1,600.00. She worked for Norris Auto Mall until February 1996, when she began her employment with Andersen Con- sulting, where she is currently employed. In 1996, she earned $2,784 from Norris Auto Mall and $23,083 from Andersen Consulting. In September 1996, appellee received a raise of $2,000.00. She also testified that she received overtime; her year-to-date overtime pay as of December 15, 1996 was $2,177.00. Appellee further testified that overtime was not guaranteed since it depended on the workload and the number of people on an engagement at a particular time. Appellee's 1997 annual salary was $27,100.00. As a benefit of her employment, appellee receives -3- health insurance. Appellee also testified that she spent approxi- mately $300 per month for food, and approximately $100 per month for the care and feeding of two dogs the parties had purchased during their marriage. Further testimony by appellee revealed that she had a Merrill Lynch IRA account that had a balance of $3,685 as of April 1996. The parties also had a joint Merrill Lynch account, with a balance of $12,418 as of January 1997. Appellee also had a pension from her previous employment with Jones, Day, Reavis & Pogue of $1,676.80 at the time of trial. Appellant then testified that he has been employed by GTE since 1986. He is currently an account manager, and his salary base for 1997 was $53,900.00. In 1995, his W-2 form indicated local wages of $65,064.89 and in 1996, it reflected wages of $63,698.67. Appellant testified that these sums included any incentives or perks he may have received. Appellant also receives, as benefits of his employment, health insurance and long-term disability. Appellant next testified regarding his Savings Plan with GTE. The 401(K) plan had a balance of $75,844.42 in March 1996. In December 1996, the account had a value of $85,273.42. Appellant testified that the difference in the values of the account was reflective of the fluctuation of the values of its stocks. The record further reflected that as of March 1997, the account contained $90,021.40, consisting of $31,831.58 in the after-tax contribution by appellant and $58,410.67 in the pre-tax contribu- -4- tion amount. Appellant was thirty-eight at the time of trial; he will be permitted to access his 401(K) Plan at age sixty-five. Appellant further testified that he had previously owned a Ford Taurus which, he claimed, was a lemon. He traded in the Taurus and received a net trade-in allowance of $1,374.66. Appellant's first pre-trial statement valued the Taurus at $20,682 and stated that he still owed $13,682 on the automobile. Appellant also testified that the parties had a National City Bank checking account, which contained approximately $200, and a Metropolitan Life Insurance policy which was valued at $3,129.37. In 1996, appellant cashed in sixty shares of GTE stock for $2,575.66. Finally, appellee's attorney, Margaret Stanard, testified regarding her fees. Appellee owed $8,729 for fees incurred in this matter. She had previously paid $3,438, leaving a balance due of $5,291.00. On March 20, 1997, the trial court issued a final Judgment Entry and Decree of Divorce in this matter. The judge determined the following items constituted the marital assets: Property Fair Market Value Net Value Home located at $137,500.00 $61,200.00 18670 Windward Way Strongsville, Ohio Wife's Merrill Lynch IRA 4,176.00 4,176.00 Merrill Lynch Joint Account 12,418.00 12,418.00 GTE Stock 17,711.95 17,711.95 Century Savings Checking Acct. 800.00 800.00 GTE Savings Plan 90,021.40 90,021.40 -5- GTE Pension Plan 14,674.16 14,674.16 GTE Stock cashed 2,575.66 2,575.66 Ford Taurus traded 7,000.00 7,000.00 Met Life policy 3,129.37 3,129.37 Wife's Jones Day pension 1,676.00 1,676.00 Jet Ski 3,300.00 3,300.00 Wife's 1994 Honda automobile 4,000.00 4,000.00 National City Bank Checking 3,701.00 3,701.00 Acct. __________ __________ TOTAL $292,864.00 $226,564.00 The trial court determined that it was economically desirable to retain the marital home intact so as not to reduce its equity by the costs of sale and real estate commissions. The court also determined that the tax consequences of liquidating the GTE Savings Plan would be prohibitive. The trial judge held that the division of marital property should be substantially equal. The court also ordered that appel- ant should pay to appellee the sum of $1,250 per month for a period of sixty-six months. The court then reduced the term to forty- eight months, crediting appellant for having voluntarily paid the majority of the expenses associated with the marital residence. Therefore, appellant was ordered to pay $1275 per month, which includes a two percent fee, through the Cuyahoga Support Enforce- ment Agency, commencing April 1, 1997, for a term of four years until either party's death or appellee's remarriage or cohabita- tion. -6- The trial judge awarded appellee appellant's interest in the marital home, ordering that appellee pay the first and second mortgages, taxes and insurance on the property commencing April 1, 1997 and that appellee hold appellant harmless on these obliga- tions. Appellee was also awarded the following: her pension from Jones Day, the Merrill Lynch IRA, her automobile, her jet ski, the Merrill Lynch joint account, $26,617 of the pre-tax portion of the GTE savings plan, and two Akita dogs. The property awarded to appellee totaled $114,437.00. Appellant was awarded: his automobile, the cashed GTE stock, the Metropolitan Life Insurance policy, his GTE pension, the GTE stock, $63,404 from the balance of the GTE savings plan, the National City Bank account and the Century Savings account. Appellant's portion of the property awarded to him totaled $112,995.60. Finally, determining that appellee will not have the financial ability to pay all of her own attorney's fees, the trial judge ordered appellant to pay $2,000 toward those fees. Appellant timely filed his Notice of Appeal. Appellant states four assignments of error. Appellant's first assignment of error contends: THE TRIAL COURT ERRED IN AWARDING SPOUSAL SUP- PORT TO DEFENDANT-APPELLEE. Appellant maintains that the trial judge abused his discretion when he awarded spousal support to appellee. When determining whether spousal support is warranted, a trial court must take into consideration all of the factors enumerated in -7- R.C. 3105.18(C)(1)1 and should not base its determination upon any one of the factors listed taken in isolation. See Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, at paragraph one of the syllabus. R.C. 3105.18 provides: (C)(1) In determining whether spousal support is appropriate and reasonable, and in deter- mining the nature, amount, and terms of pay- ment, and duration of spousal support, which is payable either in gross or 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 [3105.17.1] of the Revised Code; (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 par- ties; (e) The duration of the marriage; (f) The extent to which it would be inap- propriate for a party, because he will be custodian of a minor child of the mar- riage, 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 1Formerly R.C. 3105.18(B). -8- 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 employ- ment, 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 ex- pressly finds to be relevant and equita- ble. The trial court enjoys broad discretion in fashioning an equitable division of marital property and in awarding spousal support. Babka v. Babka (1992), 83 Ohio App.3d 428, 432, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218, 5 OBR 481, 482, 450 N.E.2d 1140, 1141; Cherry v. Cherry (1981), 66 Ohio St.2d 348, 20 O.O.3d 318, 421 N.E.2d 1293, paragraph two of the syllabus. The Ohio Supreme Court considered the definition of an abuse of discretion in Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, noting that its role: *** is to determine whether the trial judge's decision was an abuse of discretion, not whether it was the same decision we might have made. Wargo v. Price (1978), 56 Ohio St.2d -9- 65, 10 O.O.3d 116, 381 N.E.2d 943. Not only is our role limited to review, but the review itself has narrow limits: *** We have repeatedly held `[t]hat the term abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconsciona- ble.' Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. Appellant first argues that the trial court erred by failing to consider the amount appellant earned in overtime pay. The tes- timony indicates that appellee earned $2,177 in overtime pay for 1996. The judgment entry notes that appellant's annual salary is approximately $58,000 and appellee's annual salary is $27,000.00. As indicated by the parties' testimony and the evidence submitted, appellant earned more than his base salary when incentives and perks were added and appellee earned slightly more when her over- time pay was included. There is no evidence that the trial judge abused his discretion by failing to specifically acknowledge appellee's overtime pay in his judgment entry. The judgment entry issued by the trial court demonstrates that the trial court properly considered the relevant factors enumerated in R.C. 3105.18(C)(1). The trial judge acknowledged that appellant earns annually approximately $30,000 more than appellee. He noted that appellant was born in 1958, appellee was born in 1959, and both parties were in good health. Their marriage lasted sixteen years, and they had no children. Appellant's retirement benefits consisted of his GTE pension plan and Savings Plan. Appellee's retirement benefits consisted of her Jones Day pension and Merrill -10- Lynch IRA. After considering all of the relevant factors, the trial court awarded appellee spousal support in the amount of $1275 monthly for four years. Appellant argues that the trial court abused its discretion by failing to consider whether appellee had a need for spousal support. The Ohio Supreme Court, in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 68 stated: Any grant of `alimony' for sustenance is necessarily co-extensive with the court's determinationthat it is needed and warranted. * * * (Emphasis added.) Wolfe [v. Wolfe (1976), 46 Ohio St.3d 399] at 414, 75 O.O. 2d at 482, 350 N.E.2d at 423. Hence it follows that a trial court must determine whether there is a need for suste- nance alimony, and, if so, the amount needed and the duration of the need. Need is [a] relative term, the conception of which must, within reasonable limits, vary with the personal situation of the individual employing it. [The] [t]erm means to have an urgent or essential use * * *. Black's Law Dictionary (5 Ed. 1979) 929. Appellee relies on Adams v. Adams (1994), 95 Ohio App.3d 419, 421, which defines need as a relative term that will fluctuate, depending upon the individuals involved in the situation. In Simoni v. Simoni (1995), 102 Ohio App.3d 628, discretionary appeal not allowed, 73 Ohio St.3d 1453, this court revisited Kunkle, supra, wherein the court stated: *** [a]s this court has noted on numerous occasions, [w]hile we recognize that `*** [n]either party should make a profit at the expense of the other ***,' Cherry [v. Cherry (1981), 66 Ohio St.2d 348] at 355, 20 O.O.3d at 322, 421 N.E.2d at 1299, we do not inter- pret R.C. 3105.18 to require an alimony award that provides the parties with an equal stan- -11- dard of living or a standard of living equiva- lent to that established during the marriage. Sustenance alimony is based on need ***. The Simoni court thus determined that since the payee/spouse was capable of supporting herself, the need element was lacking and an award of alimony was unwarranted. Simoni, supra at 637. How- ever, in Simoni, the parties enjoyed a luxurious lifestyle. The trial court, in spite of its acknowledgment that both parties had substantial income creating assets, ignored the basic needs appellee had claimed in her pre-trial statement and, instead, sought to award sufficient alimony to duplicate the lifestyle the appellee had enjoyed during the marriage. Id. at 638. In contrast, in the matter sub judice, the amount awarded to appellee would not create a windfall and would probably not even allow appellee to enjoy the same lifestyle as she had during the marriage. There is no evidence in the record that indicates the trial court's award was based on more than appellee's need. See Robiner v. Robiner (Dec. 7, 1995), Cuyahoga App. No. 67195, unre- ported, 1995 WL 723269. The record indicates the trial judge did not abuse his discretion when awarding spousal support to appellee. Appellant's first assignment of error is overruled. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN FAILING TO EQUALLY DIVIDE PLAINTIFF-APPELLANT'S 401(K) PLAN AND IN AWARDING THE DEFENDANT APPELLEE THE ONLY ASSET WHICH COULD BE LIQUIDATED PRIOR TO PLAINTIFF-APPELLANT ATTAINING THE AGE OF 65 YEARS AND IN OFFSETTING THE EQUITY IN THE MARITAL DWELLING DOLLAR FOR DOLLAR AGAINST PLAINTIFF-APPELLANT'S 401(K) PLAN. -12- The record indicated that the lower court divided the marital assets substantially equally. It is appellant's position that this division of the marital property is not just since the major portion of his award is derived from his GTE Savings Plan, which is not liquid since he is not entitled to access until he attains the age of sixty-five. He maintains that he is, therefore, unable to access the assets necessary to acquire housing similar to the marital home. Appellant also argues that the account is of a speculative value since it is based on the stock market and the trial court should not have computed the account at its present value. R.C. 3105.171 provides for the division of marital property. R.C. 3105.171(B) requires that the court divide the marital and separate property equitably between the spouses ***. Furthermore, R.C. 3105.171(C)(1) provides that: *** the division of marital property shall be equal. If an equal division of marital prop- erty would be inequitable, the court shall not divide the marital property equally but in- stead shall divide it between the spouses in the manner the court determines equitable. In making a division of marital property, the court shall consider all relevant factors, including those set forth in division (F) of this section. Although appellant will not be able to access the money in his Savings Plan until he is sixty-five, he did receive the Metropoli- tan Life Insurance policy, the National City Bank checking account and the Century Savings account. Thus, appellant received sub- stantial liquid assets in the trial court's division of property. -13- Particularly considering appellant's annual income, there is no evidence that he will be unable to acquire satisfactory housing. Furthermore, the trial court did not abuse its discretion by using the present value of appellant's 401(K) Savings Plan. The trial judge acknowledged that to liquidate the pension plan would produce prohibitive tax consequences. The trial court should attempt to preserve the pension or retirement asset in order that each party can procure the most benefit, and should attempt to disentangle the parties' economic partnership so as to create a conclusion and finality to their marriage. Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, paragraph two of the syllabus. The trial judge did divide the 401(K) so that both parties share some risk; appellee received the pre-tax portion, while appellant received the after-tax portion. In addition, the trial court's decision allows a finality to the matter. The trial judge did not abuse his discretion in this regard. Appellant's second assignment of error is overruled. Appellant's third assignment of error states: THE COURT ERRED IN ORDERING PLAINTIFF- APPELLANT TO PAY THE BALANCE OF DEFENDANT- APPELLEE'S ATTORNEY FEES AS ADDITIONAL SPOUSAL SUPPORT. Appellant argues that appellee had the ability to pay her own attorney's fees; therefore, he maintains that the order that he contribute $2,000 towards appellee's attorney's fees is in error. R.C. 3105.18(H) allows a trial court to award reasonable attorney's fees to either party at any stage of the proceedings ***. The trial court has discretion to award attorney's fees in -14- a divorce action. Babka, supra at 435, citing Griesinger v. Griesinger (Aug. 5, 1987), Medina App. No. 1542, unreported, at 16, 1987 WL 15596. Appellee's attorney testified regarding the amount and the reasonableness of her fees. The trial court determined that the attorney's services were reasonable and that her time was fully compensable. The court then concluded that, considering the division of marital property and the amount of spousal support awarded, appellee would not be able to pay all of her own attor- ney's fees and ordered that appellant contribute $2,000 toward appellee's attorney's fees. There is no evidence in the record to indicate the trial judge abused his discretion when making the award. Appellant's third assignment of error is overruled. Appellant's final assignment of error alleges: THE COURT ERRED AND ABUSED ITS DISCRETION IN ITS FINDINGS AS TO THE VALUE OF PERSONAL PRO- PERTY, RESULTING IN AN INEQUITABLE DIVISION OF PROPERTY. Appellant's last assignment of error contends the trial court incorrectly attributed $3,701 to the National City checking account when his testimony at the time of trial indicated the account con- tained only $200.00. However, appellee's pretrial statement stated that the account had a value of $3,702.00. Evaluating the evidence and assessing credibility are issues primarily for the trier of fact. Babka, supra at 436, citing Ostendorf-Morris Co. v. Slyman (1982), 6 Ohio App.3d 46, 47, 6 OBR 156, 157-158, 452 N.E.2d 1343, 1345. The trial court apparently found the appellee's pretrial -15- statement to be credible, and, thus, no abuse of discretion is evident. Appellant also argues that the trial court's valuation of his automobile is incorrect. The trial judge valued his automobile at trade-in at $7,000.00. Appellant argues that he received a trade- in allowance of only $1,374.66 when he leased his current automo- bile; however, appellant's own pre-trial statement states that the Taurus's fair market value is $20,682 and that there was, at that time, still $13,682.50 owed on the automobile. Thus, using the figures provided by appellant himself, the trial court reasonably attributed a value of $7,000 to the automobile. There is no evi- dence that the trial judge abused his discretion. Appellant's fourth assignment of error is overruled. Judgment affirmed. -16- 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 Cuyahoga County Court of Common Pleas, Domestic Relations Division, 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 A. BLACKMON, A.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE KENNETH A. ROCCO 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 .