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Date: 06-17-2021
Case Style:
TRACY CHRIST v. KEVIN CHRIST
Case Number: 20 NO 0472
Judge: Anthony D'Apolito
Court: IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
NOBLE COUNTY
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Youngstown, Ohio - Criminal defense attorney represented Kevin Christ with appealing from the January 13, 2020 judgment of the Noble County Court of Common Pleas, Domestic Relations Division, which terminated his marriage, allocated parental rights and responsibilities in accordance with their agreement, provided an award of spousal, divided their marital assets and liabilities, and resolved their competing contempt motions.
The parties were married on June 22, 2001. Two minor children were born
as issue of the marriage, to-wit: A.J.C., d.o.b. 6/20/2004; and P.J.C., d.o.b. 1/31/2007.
The parties’ marital residence, located at 43157 Parrish Ridge Road, Caldwell, Noble
County, Ohio 43724, has an appraised value of around $280,000. The property is
encumbered by a first mortgage with a payoff balance around $118,000 and a second
mortgage with a payoff balance around $147,000.1
{¶3} Appellant has a Bachelor’s of Science Degree in automotive technology.
He had five business interests in total in which he was the sole member: (1) Christ
Automotive Leasing, LLC; (2) Christ Holdings, LLC; (3) Southeast Ohio Auto Parts, Inc.;
(4) APC Oil & Gas, LLC; and (5) Worl Thompson Motors, Inc.
{¶4} Appellant is self-employed in car sales, mechanical sales and work, and
collision work, doing business under Christ Automotive Leasing, LLC. He has an annual
gross income of around $77,000. His business causes him to travel throughout Ohio,
Pennsylvania, West Virginia, and Virginia. Appellant has done consulting and mechanical
1 Appellee claims that the second mortgage was used to purchase two Napa Auto Parts stores. – 3 –
Case No. 20 NO 0472
work for individuals and car manufacturers, including Chrysler, Toyota, and Nissan. He
subcontracts through an entity known as Service Solutions.
{¶5} Christ Automotive Leasing, LLC owns commercial real estate in Barnesville,
Ohio. Napa Auto Parts leased the property for $5,500 per month. The appraised value
of the property is $235,000 and is encumbered by a mortgage with a payoff balance
around $136,000.2 Christ Automotive Leasing, LLC is also the title owner of four vehicles
with the following approximate valuations: (1) 2016 Jeep Grand Cherokee (possessed by
Appellee, $14,000); (2) 2016 Dodge Ram ($29,000); (3) 2009 Dodge Challenger
($14,000); and (4) 2015 Dodge Challenger ($42,000).
{¶6} Christ Holdings, LLC owns real estate on Buffalo Run Road in Noble
County, Ohio. The appraised value of the property is around $111,000. It is encumbered
by a mortgage with a payoff balance around $46,000.
{¶7} Appellant has life insurance with a cash value around $3,100. Appellant
has an IRA with Stifel. The balance on that account went from around $122,000 in
January 2017 to zero at the time of trial.3
{¶8} Substantial debt exists in this case including tax debt (Southeast Ohio Auto
Parts, Inc. and Worl Thompson Motors, Inc., $120,000); debt that is in collection
($175,000); and judgment debt ($950,000).
{¶9} Appellee is a second-grade teacher at Shenandoah Elementary School.
She has an annual gross income of around $48,000. Appellee pays into STRS which has
a vested balance around $39,000. She has health insurance through her employment
which also covers the minor children. She also has a Stifel IRA with a balance around
$3,300. Appellee’s debts included a Chase credit card with a balance around $5,400, an
$8,500 loan with America’s Christian Credit Union, and an $1,100 dental bill for A.J.C.
{¶10} On July 22, 2016, Appellee filed a complaint for divorce. Appellant filed an
answer and motion for conciliation and family counseling.4
2 Two other Napa stores are also included in the record. The three stores had incurred substantial debt
and were ultimately foreclosed on.
3 Appellant’s liquidation of his IRA violated a TRO.
4 Appellant subsequently filed an amended answer. The court appointed various guardians ad litem for the
minor children. – 4 –
Case No. 20 NO 0472
{¶11} The matter came before the trial court on October 7, 2016, at which time
the court was advised that the parties had reached an agreement regarding motions for
conciliation and for temporary orders. In its October 12, 2016 judgment, the court
approved the agreement after finding it to be fair and equitable, dismissed Appellant’s
motion for a conciliation order, ordered the parties to remain as the temporary residential
parents and legal custodians of the minor children, and ordered them to continue sharing
parenting time and expenses.
{¶12} Thereafter, the parties engaged in mediation. They reached an agreement
for temporary orders on March 30, 2017 regarding parenting time and counseling for the
minor children.
{¶13} On May 4, 2017, Appellee filed a motion for contempt alleging that Appellant
repeatedly violated a Temporary Restraining Order (“TRO”) by communicating with her
via text messaging in a harassing and intimidating manner. The next day, Appellee filed
another motion to preclude Appellant from moving the minor children from their current
residence, modify the parenting time schedule, and modify the temporary order requiring
her to contribute one-half of the minor children’s expenses. On May 8, 2017, Appellant
filed a motion that a TRO be “implied” on Appellee and sought permission for the minor
children to apply for U.S. passports. On June 20, 2017, Appellee filed another motion to
find Appellant in contempt for failing to get the minor children to counseling and
designating her as the temporary residential parent and legal custodian. The following
week, Appellant filed a motion to modify temporary orders and a motion for contempt
against Appellee. Appellee filed another motion for contempt against Appellant on August
4, 2017.
{¶14} A hearing was held before the trial court on the contempt motions. On
September 11, 2017, the court found Appellant to be in contempt, sentenced him to 30
days in jail, and designated Appellee as temporary residential parent and legal custodian
of the minor children. Upon motion of Appellant, the court suspended execution of his
incarceration subject to conditions.
{¶15} While the divorce action remained pending in the trial court, Appellant filed
an appeal with this court, Case Nos. 17 NO 0453 and 17 NO 0454, regarding his
contempt. – 5 –
Case No. 20 NO 0472
{¶16} On October 10, 2017, Appellant filed a motion for an ex parte order
establishing a schedule of parenting time. Appellee filed an opposition. The following
week, Appellant filed another motion for contempt. Appellee filed an opposition. On
December 1, 2017, Appellee filed another motion for contempt. The parties reached an
agreement and an agreed interim temporary order regarding parenting time was filed on
December 12, 2017.
{¶17} On January 22, 2018, Appellee filed another motion for contempt. On
March 8, 2018, Appellant filed motions for an in camera interview with the minor children
and for an order appointing an attorney advocate. A hearing was held before the trial
court on the contempt motion.
{¶18} On April 10, 2018, the trial court found Appellant in contempt and sentenced
him to 60 days in jail, 30 days suspended depending upon how this court ruled on the
appeal which was pending, Case Nos. 17 NO 0453 and 17 NO 0454. On December 31,
2018, this court affirmed in part, reversed in part, and remanded the matter to the trial
court on the sole issue of attorney fees. T.C. v. K.C., 7th Dist. Noble Nos. 17 NO 0453
and 17 NO 0454, 2018-Ohio-5403.
{¶19} Upon remand, the trial court found the parties had reached an agreement.
An agreed entry was filed on February 21, 2019 in which the court adopted the parties’
stipulation as to the reasonableness and amount ($1,950.50) in legal fees related to the
contempt.
{¶20} On August 5, 2019, Appellant filed a proposed shared parenting plan, and
an amended proposed shared parenting plan on August 30, 2019.
{¶21} The parties’ underlying divorce action proceeded to trial on September 3
and 4, 2019. The parties utilized September 3 by entering into a written agreement
regarding the allocation of parental rights and responsibilities with the exception of child
support. The court conducted a contested trial on September 4 regarding all other
financial matters.
{¶22} The parties agreed that Appellee shall be designated as residential parent
and legal custodian of the minor children and that Appellant shall exercise scheduled – 6 –
Case No. 20 NO 0472
parenting time.5 On September 4, 2019, the trial court approved the parties’ proposed
resolution, finding it to be in the best interest of the minor children. The parties each
submitted proposed findings of fact and conclusions of law.
{¶23} On January 13, 2020, the trial court, inter alia, terminated the parties’
marriage, allocated parental rights and responsibilities in accordance with their
agreement, provided an award of spousal support to Appellee, divided their marital assets
and liabilities, and resolved their competing contempt motions.6
{¶24} Appellant filed this appeal, Case No. 20 NO 0472, and raises two
assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WITH
RESPECT TO ITS ORDERS ALLOCATING MARITAL ASSETS AND
LIABILITIES.
{¶25} In his first assignment of error, Appellant argues the trial court abused its
discretion regarding its orders allocating marital assets and liabilities. Specifically,
Appellant contends the court improperly declared a de facto termination of marriage; did
not make sufficient findings of fact to support its conclusions regarding the division of
marital property; improperly reserved jurisdiction over the division of assets and liabilities;
improperly ordered marital assets to be liquidated at public auction; utilized an exhibit that
was not offered or admitted at trial; and failed to dispose of all assets and liabilities.
{¶26} “[W]e review a domestic relations order dividing marital assets and liabilities
on an abuse of discretion standard.” Locke v. Locke, 7th Dist. Columbiana No. 99-CO18, 2000 WL 1847661, * 2 (Dec. 12, 2000), citing Kaechele v. Kaechele (1988), 35 Ohio
St.3d 93, 94. “An abuse of discretion connotes more than a mere error of judgment; it
implies that the court’s attitude is arbitrary, unreasonable or unconscionable.” Dimmerling
5 The parties’ oldest child, A.J.C., is boarded at Linsly, a private school in West Virginia. Appellant is
responsible for the tuition. The parties’ youngest child, P.J.C., attends Caldwell Elementary School.
6 The trial court established a de facto termination date for the parties’ marriage as July 22, 2016, the date
Appellee filed her complaint for divorce. A support order, attached to the entry, orders Appellant to pay a
monthly child support obligation in the amount of $1,084.47 for the minor children. – 7 –
Case No. 20 NO 0472
v. Dimmerling, 7th Dist. Noble No. 18 NO 0460, 2019-Ohio-2710, ¶ 17, citing Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶27} “In divorce proceedings, the trial court must classify property as marital or
separate, determine the value of that property, and then divide the marital property
equitably between the spouses. R.C. 3105.171(B).” Lunger v. Lunger, 7th Dist.
Columbiana No. 16 CO 0026, 2017-Ohio-9008, ¶ 9.
{¶28} In its January 13, 2020 judgment entry, the trial court stated the following:
PROPERTY DIVISION
The assets and liabilities are set forth in Defendant’s exhibit A (attached).
There is also the law suit against the Schleappi’s. The assets and liabilities
are marital.
Plaintiff is awarded the 2015 Kia and should pay any debt thereon.
Defendant is awarded 2016 Jeep Grand Cherokee and shall pay any debt
thereon.
Unless otherwise agreed by the parties, except for Plaintiff’s STRS account
and Stifel Nicholas [sic] IRA #7227, all remaining assets shall be sold at
public auction, on or before May 1, 2020, and the proceeds applied to the
liabilities as listed. Any excess shall be distributed as follows: the first
$58,000.00 to Plaintiff, and the balance one-half to each party.
The Court is, and has been, very curious as to the motives of Defendant.
With liabilities exceeding assets by over $1,250,000.00, it would seem that
Bankruptcy is in the offing. If bankruptcy is filed by one or both of the parties;
or if the listed liabilities are not liabilities at all, and there are net proceeds
of sale after all liabilities are liquidated; the Court retains jurisdiction to
equitably deal with that situation.
(1/13/2020 Judgment Entry, p. 2-3) – 8 –
Case No. 20 NO 0472
{¶29} Appellant, in his six specific arguments under his first assignment of error,
asserts the trial court abused its discretion regarding its orders allocating marital assets
and liabilities. Appellant maintains the court erred in arriving at its property division,
thereby resulting in an inequitable division.
{¶30} First, Appellant alleges the trial court improperly declared a de facto date of
marriage.
{¶31} “A trial court’s determination as to the duration of marriage under R.C.
3105.171(A)(2) is reviewed for an abuse of discretion.” Dimmerling, supra, at ¶ 22,
citing Lemarr v. Lemarr, 1st Dist. Hamilton No. C-100706, 2011-Ohio-3682, ¶ 4.
{¶32} R.C. 3105.171(A) states:
(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.
R.C. 3105.171(A)(2)(a) and (b)
{¶33} The trial court found “[t]he term of the marriage was from June 22, 2001
until July 22, 2016 when the complaint was filed.” (1/13/2020 Judgment Entry, p. 1).
Thus, the court used the date the parties were married as the start date of the marriage.
Instead of using the R.C. 3105.171(A)(2)(a) presumptive final hearing end date, the court
used the date Appellee filed her complaint for divorce as the end date of the marriage.
“Generally, trial courts use a de facto termination of marriage date when
the parties separate, make no attempt at reconciliation, continually maintain – 9 –
Case No. 20 NO 0472
separate residences, separate business activities and/or separate bank
accounts. * * * Courts should be reluctant to use
a de facto termination of marriage date solely because one spouse vacates
the marital home. * * * Rather, a trial court may use
a de facto termination of marriage date when the evidence clearly and
bilaterally shows that it is appropriate based upon the totality of the
circumstances.”
Dimmerling, supra, at ¶ 35, citing Marini v. Marini, 11th Dist. Trumbull No. 2005-T-0012,
2006-Ohio-3775, ¶ 13.
{¶34} “‘It is the duration of marriage that determines the valuation of the marital
estate. Therefore, once the duration of marriage is established, assets and liabilities are
determined in accordance with those dates.’” Dimmerling, supra, at ¶ 21, quoting
Alexander v. Alexander, 10th Dist. Franklin No. 09-AP-262, 2009-Ohio-5856, ¶ 37. Thus,
if a trial court utilizes a de facto termination date, it is an abuse of discretion to then use
present values for assets instead of values for the accepted de facto termination date.
Alexander at ¶ 37.
{¶35} Neither party requested a de facto termination of marriage. Neither party
prepared their case nor presented evidence and testimony with a de facto termination
date in mind. There was no evidence presented with respect to a valuation of assets or
liabilities for July 22, 2016, the de facto termination date. Therefore, because the trial
court utilized a de facto termination date, it abused its discretion by then utilizing present
values for some of the parties’ assets and liabilities instead of values for the identified de
facto termination date. Id. The court did not offer any reasoning for using different dates
of valuation.
{¶36} The record reflects that the parties maintained a joint bank account through
the contested divorce trial. The record further reflects that Appellee unilaterally relocated
out of the marital home which does not favor a de facto termination date. Dimmerling,
supra, at ¶ 35. In addition, Appellant initially actually opposed the termination of the
parties’ marriage. As stated, following Appellee’s complaint for divorce, Appellant filed a
responsive pleading for conciliation and family counseling which demonstrates that the
decision was not bilateral. – 10 –
Case No. 20 NO 0472
{¶37} Based on the totality of the circumstances, the trial court’s July 22, 2016 de
facto termination date was not appropriate because the evidence does not support a
finding of a clear and bilateral termination of the parties’ marriage. Id.
{¶38} Second, Appellant contends the trial court did not make sufficient findings
of fact to support its conclusions regarding the division of marital property.
{¶39} R.C. 3105.171(G) states:
In any order for the division or disbursement of property or a distributive
award made pursuant to this section, the court shall make written findings
of fact that support the determination that the marital property has been
equitably divided and shall specify the dates it used in determining the
meaning of “during the marriage.”
{¶40} “‘[I]n allocating property between the parties to a divorce * * * the trial court
must indicate the basis for its award in sufficient detail to enable a reviewing court to
determine that the award is fair, equitable and in accordance with the law.’” Faller v.
Faller, 7th Dist. Mahoning No. 07 MA 216, 2008-Ohio-6638, ¶ 14, quoting Kaechele,
supra, at paragraph two of the syllabus.
{¶41} The trial court’s judgment entry which terminates the parties’ marriage totals
three pages in length. (1/13/2020 Judgment Entry). On the first page, the trial court
defined the duration of the parties’ marriage pursuant to R.C. 3105.171(G). The court,
however, allocated only one-half page in its entry to “Property Division,” as quoted above.
The court made no express finding in sufficient detail to enable this court to determine
that the division of property is fair, equitable, and in accordance with the law. See Faller,
supra, at ¶ 14; see also Fritz v. Fritz, 7th Dist. Columbiana No. 93-C-66, 1995 WL 75405,
* 2 (Feb. 17, 1995) (“there is not enough information [in the judgment entry] for this Court
to determine whether the marital assets have been divided in an equitable manner”).
{¶42} Third, Appellant argues the trial court improperly reserved jurisdiction over
the division of assets and liabilities.
{¶43} “‘[A] division of marital property is not subject to modification through the
continuing jurisdiction of the court.’” Holden v. Holden, 12th Dist. Brown No. CA2015-07- – 11 –
Case No. 20 NO 0472
016, 2016-Ohio-5557, ¶ 34, quoting Robins v. Robins, 10th Dist. Franklin No. 04AP–
1152, 2005-Ohio-4969, ¶ 11.
{¶44} R.C. 3105.171(I) provides in part: “A division or disbursement of property *
* * is not subject to future modification by the court except upon the express written
consent or agreement to the modification by both spouses.”7
{¶45} Here, there is no express written consent or agreement to modification by
both parties. Again, at the conclusion of the “Property Division” section in the judgment
entry, the trial court, while speculating regarding the prospect of bankruptcy, indicated
that it “retains jurisdiction to equitably deal with that situation.” (1/13/2020 Judgment
Entry, p. 3). Even if a bankruptcy filing occurs, the trial court cannot reserve jurisdiction
over the issue of property division. As there is no agreement by both parties, the trial
court’s order violates R.C. 3105.171(I).
{¶46} Fourth, Appellant stresses the trial court improperly ordered marital assets
to be liquidated at public auction.
{¶47} A domestic relations judge has the authority to order marital property to be
sold at auction if doing so would be equitable. Gatchel v. Gatchel, 7th Dist. Columbiana
No. 12 CO 44, 2013-Ohio-5289, ¶ 51, citing Hiscox v. Hiscox, 7th Dist. Columbiana No.
06CO18, 2007-Ohio-1124, ¶ 54-55; R.C. 3105.171(J)(2) (“The court may issue any
orders under this section that it determines equitable, including * * * [a]n order requiring
the sale or encumbrancing of any real or personal property, with the proceeds from the
sale and the funds from any loan secured by the encumbrance to be applied as
determined by the court.”
{¶48} The trial court’s power to order a sale or an auction is not absolute. Gatchel
at ¶ 52, citing Hiscox at ¶ 61. “[I]t has been held that an auction should not normally be
ordered where there is a reasonable chance of fair, timely and voluntary sale.” Id. An
auction should not be ordered as punishment and when items will sell for a fraction of
their worth. Gatchel at ¶ 65. A “reasonable division would not * * * [be] burdensome to
the court. This is the purpose of a divorce court: to settle the property distribution because
the parties cannot.” Id.
7 The legislature added the exception language within R.C. 3105.171(I) on June 8, 2010. All of the case
law relied upon by Appellee in her brief pre-date the amended version of the statute at issue. – 12 –
Case No. 20 NO 0472
{¶49} As stated under “Property Division,” the trial court ordered all marital assets,
with the exception of two cars and Appellee’s STRS benefit and Stifel IRA, to be sold at
public auction and for the proceeds to be “applied to the liabilities as listed.” (1/13/2020
Judgment Entry, p. 2). In the event that any proceeds remained after satisfaction of debts
“as listed,” the trial court ordered that the first $58,000 shall be allocated to Appellee and
any balance to be equally divided between the parties. (Id.)
{¶50} The trial court offered no reason as to why it ordered all remaining assets
to be sold at public auction. There was no evidence that the parties’ assets, including
real estate, automobiles, and recreational vehicles, could not reasonably be disposed of
in a “fair, timely and voluntary sale,” which would likely result in significantly greater sale
proceeds for the parties. Gatchel at ¶ 52, citing Hiscox at ¶ 61. Based on the facts
presented, the trial court improperly ordered the foregoing marital assets to be liquidated
at public auction.
{¶51} Fifth, Appellant maintains the trial court utilized an exhibit that was not
offered or admitted at trial.
{¶52} As indicated, the first sentence in the trial court’s judgment entry under
“Property Division” states: “The assets and liabilities are set forth in Defendant’s exhibit
A (attached).” (1/13/2020 Judgment Entry, p. 2). However, neither party offered the
referenced spreadsheet as an “exhibit A” and thus, the trial court never admitted such as
a trial exhibit. Therefore, “Defendant’s exhibit A” is not a part of the record. Casler v.
Casler, 7th Dist. Carroll No. 571, 1990 WL 131357, * 2 (Sept. 6, 1990) (A “court speaks
through its record”); Anderson v. Holskey, 7th Dist. Belmont No. 08 BE 37, 2009-Ohio3053, ¶ 18 (An item which is not a part of the trial court’s record is not properly before an
appellate court).
{¶53} The exhibit referenced by the trial court does not identify all of the parties’
assets and liabilities as the court suggested. The document cited by the trial court is in
fact captioned as a “Preliminary Estimated Balance Sheet.”8
8 In her brief, Appellee references another balance sheet, Plaintiff’s Exhibit 9, which varies from the “exhibit”
that the trial court attached to its judgment entry. Exhibit 9 was admitted but not incorporated into the
court’s judgment entry. – 13 –
Case No. 20 NO 0472
{¶54} The trial court improperly utilized an exhibit that was not offered or admitted
at trial. By referencing the incomplete and inaccurate list, the court did not allocate all
assets and liabilities “as listed.”
{¶55} Sixth, Appellant asserts the trial court failed to dispose of all assets and
liabilities.
{¶56} R.C. 3105.171(B) states in part: “In divorce proceedings, the court shall, * *
* determine what constitutes marital property and what constitutes separate property
[and] * * * shall divide the marital and separate property equitably between the spouses[.]”
{¶57} “‘A divorce decree that does not dispose of all property is insufficient and
incomplete.’” Link v. Link, 3rd Dist. Mercer No. 10-11-21, 2012-Ohio-4654, ¶ 39, quoting
Schiesswohl v. Schiesswohl, 9th Dist. Summit No. 21629, 2004-Ohio-1615, ¶ 41.
{¶58} Appellant has identified Appellee’s personal loan with America’s Christian
Credit Union and the Schleappi lawsuit as the “minimum” shortcomings in the trial court’s
balance sheet affixed to the judgment entry. (5/28/2020 Appellant’s Brief, p. 13).
Nowhere in the judgment entry does it state that there should be an equal division of
proceeds from the Schleappi lawsuit. Also, the trial court did not address the likelihood
of remaining debt and which party would be responsible for paying it following the sale of
assets. In addition, Appellee also identified a number of other assets that were
unaccounted for in the trial court’s balance sheet: “tire machines, a skid steer, a backhoe
and an old white truck.” (1/25/2021 Appellee’s Brief, p. 11). Accordingly, the judgment
entry is “insufficient and incomplete.” Link, supra, at ¶ 39; Schiesswohl, supra, at ¶ 41.
{¶59} Because the trial court abused its discretion regarding its property division
order, Appellant’s first assignment of error is with merit.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WITH
RESPECT TO ITS ORDER AWARDING SPOUSAL SUPPORT TO
APPELLEE.
{¶60} In his second assignment of error, Appellant alleges the trial court abused
its discretion regarding its order awarding spousal support to Appellee in the amount of – 14 –
Case No. 20 NO 0472
$500 per month for a term of five years. Specifically, Appellant asserts the court failed to
properly consider the R.C. 3105.18 statutory factors; improperly allocated assets in lieu
of spousal support; and its award of spousal support was not appropriate and reasonable.
{¶61} We review matters involving spousal support decisions under an abuse of
discretion standard. Plymire v. Plymire, 7th Dist. Noble No. 17 NO 0443, 2018-Ohio2786, ¶ 88.
{¶62} In determining whether a spousal support award is appropriate and
reasonable and in fashioning that award, the trial court “shall consider all of the following
factors”:
(a) The income of the parties, from all sources, * * *;
(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 that
party 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; – 15 –
Case No. 20 NO 0472
(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.
(Emphasis added) R.C. 3105.18(C)(1)
Although the court need not expressly comment on each factor or explain
its reasoning in minute detail, the court must state the underlying basis for
the award and the court’s findings must enable the reviewing court to
determine the award was reasonable and that the relevant factors were
considered. Graham v. Graham, 7th Dist. No. 08NO353, 2009-Ohio-6876,
¶ 32; Miller v. Miller, 7th Dist. No. 08JE26, 2009-Ohio-3330, ¶ 142.
Specifically, the trial court must indicate its basis for the award of spousal
support in sufficient detail to enable a reviewing court to determine that the
award is fair, equitable, and in accordance with the law. Kaechele v.
Kaechele (1988), 35 Ohio St.3d 93, 97. Thus, if the entry does not provide
some illumination of the facts and reasoning for the award, the case should
be remanded. Lepowsky v. Lepowsky, 7th Dist. No. 04CO42, 2006-Ohio667, ¶ 52-55. * * * [W]e do not presume [that] the trial court considered [all
of] the [statutory] factors[.]
Boney v. Boney, 7th Dist. Noble No. 09 NO 363, 2010-Ohio-4245, ¶ 23.
{¶63} In its January 13, 2020 judgment entry, the trial court stated the following:
SPOUSAL SUPPORT – 16 –
Case No. 20 NO 0472
After consideration of the factors found in R.C. Section 3105.18, the Court
awards spousal support to Plaintiff as follows:
1.) In a lump sum in the form of her STRS account and Stifel Nicholas [sic]
IRA #7227: and,
2.) In period payments as follows: $500.00 per month, commencing
February 1, 2020, and continuing on the 1st day of each month
thereafter for a total of 60 months. Payments to be made through the
Noble County Child Support Enforcement Agency plus poundage. Said
periodic payments to cease should Plaintiff die, remarry, or live in a
conjugal relationship with another person.
The Court retains jurisdiction on this matter.
(1/13/2020 Judgment Entry, p. 3)
{¶64} Appellant, in his three specific arguments under his second assignment of
error, asserts the trial court abused its discretion with respect to its order awarding
spousal support to Appellee.
{¶65} First, Appellant contends the trial court failed to properly consider the
statutory factors found at R.C. 3105.18.
{¶66} Upon review, the foregoing judgment entry suffers from the same “paucity
of findings regarding spousal support” as in Boney, where this court found error and
remanded. Boney, supra, ¶ 30. There is no “illumination of the facts and reasoning” for
the award of spousal support such that this court can undertake any meaningful review
of the order. Id. at ¶ 23.9
{¶67} In general, the trial court identified the income of the parties by way of the
child support worksheet attached to the judgment entry, defined the duration of marriage,
and allocated assets and liabilities. See (1/13/2020 Judgment Entry); R.C.
3105.18(C)(1)(a), (e), and (i). However, there is no indication through sufficient detail that
10 Contrary to Appellee’s position, this court may not review the spousal support award merely upon either
of the parties’ proposed findings of fact and conclusions of law as the trial court did not adopt either of those
pleadings. – 17 –
Case No. 20 NO 0472
the trial court considered the following relevant statutory factors, including: the relative
earning abilities of the parties; their ages and physical, mental, and emotional conditions;
their standard of living established during the marriage; their relative extent of education;
any court-ordered payments; the contribution of each party to the education, training, or
earning ability of the other party; the tax consequences of an award of spousal support
for each party; and any other factors that are relevant and equitable. See Id.; R.C.
3105.18(C)(1)(b), (c), (g), (h), (i), (j), (l), and (n).
{¶68} Rather, the trial court merely made a conclusory statement in its judgment
entry that it considered the R.C. 3105.18 statutory factors. This is not sufficient detail.
See Floyd v. Floyd, 7th Dist. Mahoning No. 95 C.A. 54, 1996 WL 331111, * 2 (June 12,
1996) (“The factors used for the basis of the trial court’s decision should be explained in
order to permit proper review”); Rudloff v. Rudloff, 7th Dist. Mahoning No. 96 CA 60, 1999
WL 689238, * 6 (Aug. 26, 1999) (The matter was remanded because the trial court merely
made a conclusory statement that it considered the R.C. 3105.18(C)(1) statutory factors
in fashioning its spousal support award); Herman v. Herman, 11th Dist. Portage No. 96-
P-0194, 1997 WL 158106, * 5 (Mar. 28, 1997) (Because the trial court’s conclusory
references to some of the R.C. 3105.18(C)(1) statutory factors did not satisfy
the Kaechele standard, the appellate court refused to speculate regarding the
deliberative process employed by the trial court in reaching its spousal support award and
remanded the matter). Thus, this court remands the issue of spousal support because
the trial court failed to properly consider the R.C. 3105.18(C)(1) statutory factors.
{¶69} Second, Appellant takes issue with the trial court’s allocation of the STRS
benefit and Stifel IRA both as part of the property division and as part of the award of
spousal support. (1/13/2020 Judgment Entry, p. 2-3).
{¶70} R.C. 3105.18(A) expressly defines “‘spousal support’” to “not include any
payment made to a spouse * * * that is made as part of a division or distribution of property
or a distributive award under section 3105.171 of the Revised Code.” Because the award
of those assets was “made as part of a division or distribution of property,” it appears the
trial court improperly also included those assets as an award of spousal support to
Appellee, which the court shall clarify and/or correct on remand. R.C. 3105.18(A). – 18 –
Case No. 20 NO 0472
{¶71} Third, Appellant contends the $500 per month spousal support award to
Appellee was not appropriate and reasonable due to his inability to pay as his net monthly
expenses nearly approximate his gross monthly income.
{¶72} Upon considering all of the statutory factors on remand, the trial court must
indicate its basis for an award of spousal support in sufficient detail pursuant to that which
is appropriate and reasonable for the parties in accordance with Appellant’s ability to pay.
See Boney, supra, ¶ 23; White v. White, 7th Dist. Columbiana No. 02-CO-74, 2003-Ohio3279, ¶ 32 (An award of spousal support should not exceed the obligor’s ability to pay
and is based upon that which is appropriate and reasonable for the one seeking support
to receive it as well as for the other party to have to pay it).
{¶73} Because the trial court abused its discretion regarding its spousal support
order, Appellant’s second assignment of error is with merit.
Outcome: For the foregoing reasons, Appellant’s assignments of error are well-taken.
The judgment of the Noble County Court of Common Pleas, Domestic Relations Division,
is reversed and the matter is remanded for further proceedings consistent with this
opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: