COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72941 LORETTA A. GREEN, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : GARY R. GREEN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 24, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court -- : Domestic Relations Division : Case No. D-245201 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Robert J. Sawyer 300 The Superior Building 815 Superior Avenue Cleveland, Ohio 44114-2746 For defendant-appellant: James M. Wilsman WILSMAN & SCHOONOVER 1920 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1804 -2- NAHRA, P.J.: Appellant, Gary R. Green, appeals the trial court's award of temporary spousal support to Loretta A. Green, appellee, the subsequent denial of a modification of the temporary support, and a resulting finding of contempt. On February 14, 1991, appellant and appellee were married. Prior to this union, appellant and appellee lived together for a period of four years. On February 2, 1996, Loretta filed for divorce and equitable relief. On February 28, 1996, Mr. and Mrs. Green entered into an in- court temporary support agreement. This agreement specifically provided that the parties were to not only reside at the same residence, the marital home, but they also had to maintain a joint checking account. Gary was to deposit all paychecks and bonuses received, and Loretta would pay all bills concerning the home, life insurance, car insurance, the minimal monthly payments concerning both appellee's and appellant's medical and dental expenses, and the maintenance of the parties automobiles. The balance of the account was then to be divided equally. Further, neither party's boyfriend or girlfriend was permitted to reside in the marital residence, and appellant and appellee were to maintain separate bedrooms and act in a civil manner. The trial court reserved the right to amend and modify said agreement as the situation dictated. On June 21, 1996, appellant filed a motion to modify the temporary support order on the basis of changed circumstances, -3- which was denied, resulting in a finding of contempt against appellant. Further, appellee filed numerous motions, including show cause motions for defendant's failure to comply with the temporary support order, and appellant and appellee filed other numerous motions to show cause, compel discovery, and for sanctions. During the time of their marriage, the couple accumulated various items of wealth and importance, and it is from the following list which the court determined the spousal support payments. In September of 1994, the couple purchased their current home for the price of $89,329.89. $8,000.00 of this payment came directly from the parents of Mr. Green, and was subsequently ruled to be his separate property. During the course of this marriage this home appreciated to a value of $94,345.00, and a relative appraised market value of $120,000.00. As a result, the total appreciation of the home was determined by the court to be $25,655.00. The total equity of the home was valued at $43,670.00; however, after the court made the adjustment for appellant's $8,000.00 and its subsequent appreciation, the total marital equity of the home was determined to be $23,61.00. The trial court then itemized all marital property on which a value was set in the amount of $45,377.00. Loretta's income was minimal as she held various low paying hourly jobs, however Gary earned $45,000 at the time of divorce. In trying to equitably divide the property and set a reasonable alimony payment the trial court made the following -4- distributions. Appellant received the family home, three automobiles and his gun collection. Appellee was awarded $1,000.00 per month, plus 2% poundage, in sustenance alimony support, mainly due to her deteriorating physical condition and her inability to work, and all cash accounts jointly held by the parties, including Gary's IRA and the cash value of the insurance policy. Appellee was also awarded $10,887.00 in temporary alimony, $7,000.00 in property division, and $3,500.00 in attorney's fees. Appellant timely filed an appeal and assigns two errors for our review. I. Appellant's first assignment of error states: THE TRIAL COURT'S AWARD OF SPOUSAL SUPPORT IS ARBITRARY, UNREASONABLE AND UNCONSCIONABLE. R.C. 3105.17 states in pertinent 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 the 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; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; -5- (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. Blakemore v. Blakemore (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. -6- 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 trial court's findings of fact and conclusions of law, the court determined the following: With respect to the issue of spousal support, the court must determine what the incomes of the parties are, as well as their expenses. Mr. Green makes approximately $45,000 per year at Tubecraft Corp. Mrs. Green, while she had been employed during the marriage, is currently unemployed because of severe physical limitations. *** Mrs. Green suffers from a variety of problems, the most severe and most debilitating of which is a disc and back problem. During the course of the trial, Mrs. Green (who wears a back brace) was visibly in pain. She has several discs that are degenerative. She has pinched nerves. She has a bulging of the discs. She has spasms in her back. She has ulcers. She has foot problems. She has a ninth grade education and all of her work history prior to 1992 was in physical low-end income jobs, such as waitressing, cleaning and factory work. She injured her back in 1992 and has not worked since that time. She did attempt to work cleaning houses, but she couldn't move for days later. Section 3105.18 of the Ohio Revised Code provides that in determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support ... the court shall consider all of the following factors : Mr. Green's income is approximately $45,000 per year and due to the physical limitations of the plaintiff her opportunity for work will be limited. *** It can be expected that as long as Mr. Green's health holds up he will continue to be able to generate income of approximately $45,000 per year. Mrs. Green, on the other hand, has no real skills and has been out of the job market since 1992. She is 47 -7- years old and in poor health. The Court cannot even project what she could possibly make since any job would be one that would require physical effort and considering the state of her back in particular, the Court cannot find that she is even capable of working. *** This is a marriage of ten (10) years if you include the period the parties lived together. This is a marriage of six (6) years if the court uses only the ceremonial date of marriage. For purposes of spousal support, the Court finds that the spousal support order in this case would be the same regardless of whether the marriage was ten or six years. The court believes that Mrs. Green will have an indefinite need for spousal support. However, the court is ordering support for only four (4) years because of the relatively short duration of the marriage. *** The parties live a modest comfortable lifestyle. They did not travel. They did not eat out regularly. Their life revolved around their home. *** Neither party contributed to the education nor training of the other party. *** The court is taking into consideration that the payment of spousal support for tax purposes is deductible to Mr. Green and is income to Mrs. Green. *** [T]he Court finds that the plaintiff/Loretta Green has a need for spousal support and that the defendant/Gary Green has the ability to provide spousal support in the amount of $1,000 per month, plus 2% poundage, until the plaintiff or defendant die or the plaintiff remarries or cohabits, or until May 31, 2001, whichever first occurs, but subject to further order of the court. It is clear that in determining the appropriateness and reasonableness of spousal support for appellee, the court -8- considered the applicable factors listed in R.C. 3107.18(C)(1). Additionally, the $1,000.00 per month award of alimony serves to leave each party with approximately the same amount of disposable income per month. Also, the court's findings regarding appellee's physical condition and ability to work were based not only on the court's observations of appellee, but also on appellee's extensive testimony regarding her various conditions and the medications she had to take. We do not find this decision to be unreasonable, arbitrary or unconscionable. Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT MODIFY (SIC) THE IN COURT AGREEMENT, BY MISCALCULATING THE TEMPORARY SUPPORT ARREARAGE AND BY FINDING MR. GREEN IN CONTEMPT OF THE IN-COURT AGREEMENT. Appellant complains that the trial court erred by not modifying the temporary support in-court agreement dated February 28, 1996, when circumstances dictated a modification. Pursuant to the in-court agreement, appellee and appellant were to reside in the same home, the marital home, and appellant was to submit all of his employment checks into a shared checking account from which appellee would pay their joint expenses, the remainder to be divided equally. Appellant maintains that he attempted to move back in the marital home, and set up a bank account at BankOne where he deposited his paychecks, but at each turn appellee would frustrate his intentions. Appellee refused to -9- let him move back home by changing the locks and utilized the money he deposited in their joint account for everything but paying their joint bills. As a result, appellant maintains he was forced to find other arrangements for residence; and, thus, his expenses doubled. After the trial court denied his June 1996 motion to modify, he was found in contempt of the in-court agreement. In denying his motion to modify, the court stated that through May 31, 1996, the parties complied with the order; however, appellant unilaterally decided to ignore the court order commencing in June of 1996, when he discontinued any payments into the joint checking account and provided Mrs. Green with -$0-" in support. The trial court did note that appellant was continuing to pay the mortgage payments, as well as the sewer and water bills, and the automobile insurance. The court went on to say that Mr. Green's testimony concerning his reasons for not moving back into his State Road home were unconvincing. The court reasoned that the decision by appellant not to move into the marital residence was one of a voluntary nature, and did not constitute a change of circumstances requiring a modification. The court further noted that even if the court were to modify the agreement as requested, the order would have remained almost identical as the in-court agreement. R.C. 3105.18 provides 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. During the pendency of any divorce, or legal -10- separation proceeding, the court may award reasonable temporary spousal support to either party. *** (E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies: *** (F) For purposes of divisions (D) and (E) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses. In Blakemore, supra at p. 6, the Ohio Supreme Court determined that when reviewing a decision regarding the modification of spousal support, then alimony, a reviewing court should disturb the trial court's decision only upon a showing of an abuse of that discretion. In this case, the trial court properly and diligently worked out an arrangement for temporary support to which the appellant chose not to abide. The decision to move out of the marital home was voluntarily made by appellant and the costs incurred by him as a result of this decision are his to bear. Accordingly, even though there were changes in the circumstances originally before the trial court, the trial court did not abuse its discretion in not modifying the in-court agreement. -11- Furthermore, as a result of the above, the court was warranted in finding appellant guilty of contempt. Appellant also maintains that the court improperly calculated the temporary support payments and as a consequence the applicable arrearage from the time of non-compliance, June 1, 1996 through May 31, 1997, a period of one year. It is appellant's argument that the court erred by not following Local Rule 23 of the Domestic Relations Division because appellant was never required to file a temporary support worksheet which itemized his present expenses and income. Local Rule 23, Domestic Relations Division, provides in pertinent part: (A) Any request for temporary support shall be by motion and affidavit on forms provided by the Court. The opposing party may file an answer affidavit on forms provided by the court within 14 days from the request from the date of service of the motion requesting temporary support. The failure of the party to file an answer affidavit shall preclude such party from objecting to the amount of income attributed to that party by the moving party, unless good cause is shown by such failure. In the case at bar, appellee's motion for emergency temporary support and a request for service was filed on February 21, 1996. However, prior to this, appellee filed a motion for alimony pendente lite with notice and affidavit on February 2, 1996. In response to appellee's alimony motion, appellant filed an answer affidavit, on a form provided by the court, on February 13, 1996. This affidavit specifically provided for appellant's gross and net income per month, and his total income from all sources within the last six months. It is from these sums that the court derived the -12- proper payments for the in-court agreement. The court realized that the form provided in response to appellee's alimony claim was the exact form which appellant was to file under Local Rule 23, in response to the temporary support motion. Instead of having appellant file another identical form, the court utilized the existing, two-week-old form at the in-court hearing. Had appellant been afforded the opportunity to file a new answer affidavit, as dictated by Rule 23 of the Domestic Relations Division, the information provided would have been identical. As a result, there was no manifest miscarriage of justice when the trial court used the previously filed affidavit in calculating the temporary support payments and the subsequent arrearage. Accordingly, this assignment of error is overruled. Judgment affirmed. -13- 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 -- 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. JOSEPH J. NAHRA PRESIDING JUDGE KARPINSKI, J., and TIMOTHY E. McMONAGLE, J., CONCUR. 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 .