Bailey v. Bailey

2020 Ohio 4333

• Court: Ohio Court of Appeals
• Decided: September 4, 2020
• Docket: 20 CAS 14
• Status: Published

Opinion

[Cite as Bailey v. Bailey, 2020-Ohio-4333.]

COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT COUNTY OF SANDUSKY

BRENDA BAILEY, :

Plaintiff-Appellee/ : Cross-Appellant, No. 20 CAS 14 : v. : RAYMOND BAILEY, : Defendant-Appellant/ Cross-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED IN PART AND REMANDED RELEASED AND JOURNALIZED: September 4, 2020

Civil Appeal from the Sandusky County Court of Common Pleas Domestic Relations Division Case No. 18 DR 1144

Appearances:

Albrechta & Coble, Ltd., John Coble, Joseph F. Albrechta, and Jordan A. Treece, for appellee.

Mayle, L.L.C., and Andrew R. Mayle, for appellant.

KATHLEEN ANN KEOUGH, J.:

Raymond Bailey (“Raymond”) appeals from a judgment entry of the

Sandusky County Court of Common Pleas, Domestic Relations Division, granting a

divorce from his former wife, Brenda Bailey (“Brenda”). Raymond contends that the trial court erred in not retaining jurisdiction to modify the spousal support

award. Brenda cross-appeals, contending that the trial court erred in limiting the

spousal support award to eight years. For the reasons that follow, we affirm the trial

court’s judgment regarding the length of the spousal support award but reverse that

part of the trial court’s judgment stating that it does not retain jurisdiction to modify

the spousal support award. The matter is remanded for entry of an amended

judgment consistent with this decision.

I. Background

The parties engaged in lengthy settlement discussions and reached

agreement on all issues except for spousal support and attorney fees. The trial court

decided the issue of spousal support on briefs and awarded Brenda support of

$1,750.00 per month for eight years, nonmodifiable but subject to termination upon

Brenda’s remarriage or cohabitation with an unrelated male.

The trial court made the following findings regarding its spousal

support award. Raymond and Brenda were married for 35 years and had three

children, all of whom were adults at the time of the divorce. They are each 53 years

old. Raymond is employed as a laborer with an average annual income over the last

five years of about $84,500.00. Brenda receives Social Security disability benefits

in the amount of $13,326.00 annually. She could earn additional income because

she is a licensed daycare provider but has chosen not to work in that field. The court

also found that Brenda would most likely need to further supplement her income

and that she is not so disabled that she cannot find gainful employment. The court reasoned that “[s]he is not a woman abandoned at age 70 after 50 years of marriage

with no work history and no opportunity.”

In his assignment of error, Raymond contends that the trial court

erred in failing to retain jurisdiction to modify the spousal support award during its

eight-year term. He does not dispute the amount or length of the award, but argues

that in light of the trial court’s refusal to retain jurisdiction, he could not seek any

reasonable accommodation should some future misfortune such as a disability or

layoff render him unable to comply with the order. He asserts that without any

ability to modify the spousal support order if there is a change in circumstances, any

financial misfortune would either cause a drastic change in his own lifestyle or force

him into a contempt-of-court situation. According to Raymond, either result would

“twist the even-handed aim” of spousal support law because although the law does

not require the court to ensure an equal standard of living when awarding spousal

support, “neither party should profit at the expense of the other.” Kunkle v. Kunkle,

51 Ohio St.3d 64, 70, 554 N.E.2d 83 (1990).

Under R.C. 3105.18(E)(1), a domestic relations court must reserve

jurisdiction to subsequently modify a spousal support award. The decision as to

whether to retain such jurisdiction is a matter within the domestic relations court’s

discretion. Smith v. Smith, 6th Dist. Huron No. H-99-029, 2001 Ohio App. LEXIS

64, 8 (Jan. 12, 2001), citing Johnson v. Johnson, 88 Ohio App.3d 329, 331, 623

N.E.2d 1294 (5th Dist.1993). Accordingly, this court will not reverse a trial court’s

decision to not retain jurisdiction absent an abuse of that discretion. An abuse of discretion is more than an error law or judgment. Rather,

the term implies that the trial court’s attitude in reaching its decision was

unreasonable, arbitrary, or unconscionable. Smith at id., citing Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

In this case, we find that the trial court was unreasonable in failing to

retain jurisdiction to modify the spousal support award in the future should

Raymond or Brenda’s circumstances change. “The parties are in their early fifties

and, although they do not suffer from major medical problems at the present time,

they could encounter such problems over the next [eight] years.” Smith at 11

(holding that trial court’s failure to retain jurisdiction over a seven-year spousal

support award was an abuse of discretion). Additionally, in these uncertain

economic times, exacerbated by a worldwide pandemic, Raymond’s income could

vary greatly in the coming years. Given these factors, we conclude the trial court

abused its discretion by failing to retain jurisdiction over the spousal support award.

Our conclusion is in accord with the majority of districts in Ohio,

including this one, that have held that a trial court abuses its discretion if it orders

spousal support for definite periods of relatively long duration without a reservation

of authority to modify the amount of support due to a change of circumstances. See

Smith at ¶ 10; Morris v. Morris, 9th Dist. Summit No. 22778, 2006-Ohio-1560, ¶ 21;

Orwick v. Orwick, 7th Dist. Jefferson No. 04JE14, 2005-Ohio-5055, ¶ 64, citing

Bertholet v. Bertholet, 154 Ohio App.3d 101, 2003-Ohio-4519, 796 N.E.2d 541, ¶ 55

(9th Dist.); Arthur v. Arthur, 130 Ohio App.3d 398, 410, 720 N.E.2d 176 (5th Dist.1998); Nori v. Nori, 58 Ohio App.3d 69, 73, 568 N.E.2d 730 (12th Dist.1989);

Babcock v. Babcock, 8th Dist. Cuyahoga No. 82805, 2004-Ohio-2859, ¶ 43; Straube

v. Straube, 11th Dist. Lake No. 2000-L-074, 2001 Ohio App. LEXIS 3528 (Aug. 10,

2001); Henninger v. Henninger, 2d Dist. Darke No. 1303, 1993 Ohio App. LEXIS

2558 (May 4, 1993); Brown v. Brown, 12th Dist. Madison No. CA2008-08-021,

2009-Ohio-2204, ¶ 74.

The spousal support award in this case was for eight years, a relatively

lengthy period of time. The trial court’s failure to retain jurisdiction to modify the

spousal support award failed to account for possible contingencies such as Raymond

becoming disabled or suffering a reduction in income. The trial court’s failure to

retain jurisdiction is also a detriment to Brenda because it prevents her from seeking

a modification to the award. Morse v. Morse, 6th Dist. Ottawa No. OT-16-023, 2017-

Ohio-5690, ¶ 29 (retention of jurisdiction works to the advantage of both parties

because it makes it possible for both parties to ask for modification of the award).

Accordingly, we find that the trial court abused its discretion in not retaining

jurisdiction to modify the spousal support award. Raymond’s assignment of error

is sustained.

In her cross-appeal, Brenda contends that the trial court abused its

discretion in limiting the spousal support award to eight years. She contends that

she is disabled, and nothing in the record suggests that she has the resources, ability,

or potential to become self-supporting. Accordingly, she contends that the trial

court should have ordered spousal support for an indefinite duration and reserved jurisdiction to modify the order as appropriate. In the alternative, she contends that

if there must be a fixed term, “at the very least,” the term “should be in the

neighborhood of 12 years,” and the court should retain jurisdiction “for both parties

to have the benefit of court review in order to ensure fairness and that their

respective needs [are] being met.” (Appellee’s Brief, p. 8.)

Trial courts generally enjoy broad discretion to determine spousal

support issues. Kunkle, 51 Ohio St.3d at 67, 554 N.E.2d 83. Accordingly, we will not

reverse a trial court’s spousal support decision absent an abuse of discretion. Pauly

v. Pauly, 80 Ohio St.3d 386, 390, 696 N.E.2d 1108 (1997). In this case, we find no

abuse of discretion by the trial court’s limiting the spousal support award to eight

years.

R.C. 3105.18(B) allows trial courts, upon a party’s request and after

property distribution, to award reasonable spousal support. The statute sets forth

the factors a court shall consider when determining whether a spousal support

award is reasonable and appropriate. If the trial court awards spousal support,

[t]he modern trend favors terminating [spousal support] on a date certain. The reason for awarding [spousal support] payable only to a date certain is that the payee’s need requiring support ceases, when, under reasonable circumstances, the payee can become self- supporting. * * * [E]xcept in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has the resources, ability and potential to be self- supporting, an award of [spousal support] should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties’ rights and responsibilities. Kunkle at 69.

This marriage was unquestionably one of lengthy duration (35 years),

so the standard presumption against an indefinite award of spousal support is

therefore inapplicable. But Kunkle does not stand for the proposition that

permanent spousal support is mandated in marriages of lengthy duration. Lojek v.

Lojek, 4th Dist. Washington No. 10CA8, 2010-Ohio-5156, ¶ 62; Bello v. Bello, 5th

Dist. Delaware No. 09CAF040041, 2010-Ohio-1912, ¶ 70. Even in a marriage of

long duration, “if the payee spouse has the ability to work outside the home and be

self-supporting, a spousal support award should include a termination date.”

Lepowsky v. Lepowsky, 7th Dist. Columbiana No. 06CO23, 2007-Ohio-4994, ¶ 81.

An award of indefinite spousal support is proper only where “under reasonable

circumstances, a divorced spouse does not have the resources, ability or potential to

become self-supporting.” Kunkle at 69 (emphasis sic.)

We find no merit to Brenda’s contention that there is no evidence in

the record to suggest she has the resources, ability, or potential to become self-

supporting. The evidence demonstrated that Brenda is 53 years of age. Today,

where individuals commonly live well into their eighties and nineties, 53 is

considered to be a relatively young age. See, e.g., Sears v. Sears, 5th Dist. Stark No.

2001CA00368, 2002-Ohio-4069 (affirming denial of permanent spousal support in

a case involving a 34-year marriage with both spouses in their mid-fifties). The evidence also demonstrated that despite her disability,1 Brenda is

able at a minimum to provide daycare services in her home.2 Brenda’s relatively

young age, coupled with her demonstrated ability to work, is sufficient evidence that

she has the potential and ability to become self-supporting. Brenda offered no

evidence to the contrary. Thus, we find no abuse of discretion in the trial court’s

decision not to award indefinite spousal support.

We likewise find no abuse of discretion in the trial court’s decision to

limit the award to eight years. Brenda’s argument that the term should be “in the

neighborhood of 12 years” because the marriage was lengthy, and she is currently

unemployed and receiving disability benefits, offers nothing to explain why the

award should have been for a longer period of time. The trial court undoubtedly

considered these factors in rendering its judgment, and we find nothing in the record

to indicate the award should have been for a longer period of time. Brenda’s cross-

appeal is therefore overruled.

Judgment reversed in part and remanded.

It is ordered that appellant/cross-appellee recover from appellee/cross-

appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

1 In her trial court brief regarding spousal support, Brenda stated that during her prior employment at Revere Plastics, she sustained a wrist/shoulder injury that resulted in the Social Security disability award.

2 Although Brenda asserted in her trial court brief that she is not a licensed daycare provider, the evidence demonstrated that she has provided daycare services in her home. 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.

KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., and MICHELLE J. SHEEHAN, J., CONCUR

*Judges of the Eighth District Court of Appeals sitting by assignment in the Sixth District Court of Appeals. Spousal support award; retain jurisdiction; abuse of discretion; change in circumstances; modify; definite period; eight years; disability; self-supporting.

Trial court abused its discretion in not retaining jurisdiction to modify the spousal support award where the award was for eight years and could not be modified if there was a change in circumstances; trial court did not abuse its discretion in limiting the spousal support award to a definite term even though the marriage was of long duration and the payee ex-wife was disabled because she was relatively young and had the ability to work and become self-supporting.