Beach v. Beach

2012 Ohio 3056

• Court: Ohio Court of Appeals
• Decided: June 28, 2012
• Docket: 11CA0088
• Status: Published

Opinion

[Cite as Beach v. Beach, 2012-Ohio-3056.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: CHRISTOPHER R. BEACH : Patricia A. Delaney, P.J. : William B. Hoffman, J. Plaintiff-Appellant : Julie A. Edwards, J. : -vs- : Case No. 11CA0088 : : BARBARA J. BEACH : OPINION

Defendant-Appellee

CHARACTER OF PROCEEDING: Civil Appeal from Licking County Court of Common Pleas Case, Domestic Relations Division, No. 10DR00556

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 28, 2012

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

EUGENE F. BATTISTI, JR. VICKY M. CHRISTIANSEN 15 E. Kossuth Street JULIE K. FIX Columbus, Ohio 43206 172 Hudson Avenue Newark, Ohio 43055 [Cite as Beach v. Beach, 2012-Ohio-3056.]

Edwards, J.

{¶1} Plaintiff-appellant, Christopher Beach, appeals from the August 2, 2011,

Judgment Decree of Legal Separation that was issued by the Licking County Court of

Common Pleas, Domestic Relations Division.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant Christopher Beach and appellee Barbara Beach were married

on October 1, 1994. No children were born as issue of such marriage.

{¶3} On April 8, 2010, appellant filed a complaint for divorce against appellee.

Appellee, on May 3, 2010, filed an answer and a counterclaim for legal separation.

{¶4} Subsequently, the final hearing commenced on March 21, 2011. The

following evidence was adduced at the hearing.

{¶5} Appellee has a Bachelor of Science degree from Virginia Commonwealth

University. She received her degree, which was in administration of justice, in 1986. On

April 5, 2010, appellee was hired as a risk analyst by Chase Bank. Her salary was

$29,000.00 a year with an additional ten percent for shift differential since she works the

night shift. Appellee testified that the differential would go away if she changed shifts.

Appellee also testified that overtime was not offered as a rule, but was sometimes

offered seasonally on the weekends. Appellee testified that she was enrolled in a

dental insurance plan through Chase and that she paid $7.60 every pay period for the

same. In 2010, appellee also earned $1,831.00 in overtime. Effective February 15,

2011, she received a 3% raise for an increase of $880.00 per year. Appellee testified

that she was paid twice a month and that she earned approximately $2,226.80 per

month. Licking County App. Case No. 11CA0088 3

{¶6} At the hearing, appellee testified that she expected to spend around

$3,027.00 a month on expenses, including expenses to maintain the marital residence.

She indicated that she was asking for spousal support so that she could afford the

marital residence. She testified that her health was good and that when the parties

were together, they boated, played golf and took annual trips, including a trip to Disney

World.

{¶7} Appellee testified that she had not taken any pleasure trips since the

parties’ separation and that she did not have the money to do so. She also testified that

she had $10,000.00 in the bank at the time of the marriage and that she used the same

to pay off appellant’s debts.

{¶8} At the hearing, appellant testified that he was a police officer. As of the

time of the hearing, he was earning approximately $60,000.00 a year from his

employment with Franklin Township Police Department and another $19,448.00 from

his employment with Kohl’s. Appellant testified that out of his Franklin Township pay

stub, he had $135.00 per pay in deferred compensation deducted as well as health

insurance in the amount of $15.46 biweekly. Appellant testified that while he had

worked for Kohl’s for approximately three years doing security, he believed that his

employment with Kohl’s would cease in the future and not by his choice. A

representative of Kohl’s testified that he heard rumors that the store where appellant

worked might be closing.

{¶9} Appellant testified that he moved out of the marital house in November of

2009 and moved in with his father and step-mother. He testified that he helped his

parents with utility and food expenses. Appellant paid approximately $30.00 to $50.00 a Licking County App. Case No. 11CA0088 4

month for utilities. He testified that his health was fair because he had kidney disease,

but that his disease was stable. According to appellant, he will have to have a kidney

transplant in the future and saw a doctor every six months. Appellant testified that his

kidney disease did not keep him from working and that he took medication for high

blood pressure and for kidney disease.

{¶10} At the hearing, appellant testified that he had taken some trips with Tara

Blackstone, his girlfriend who lived with him. The two went to Florida in July of 2010 and

Blackstone paid for the gas and the hotel. According to appellant, they split the cost of

the meals. Appellant and Blackstone also took a three day cruise to the Bahamas in

March of 2010, and that each paid their own way. In December of 2010, the two flew to

Disney. Appellant testified that they split the cost of the tickets and hotel and also that

they also took some short weekend trips to Pittsburgh and split the cost of the gas.

Appellant testified that he paid for some of the expenses through credit cards that he

had obtained after he and appellee separated. Appellant also testified that appellee had

significantly reduced their joint debt over the past year and a half.

{¶11} On cross-examination, appellant testified that he was going to Las Vegas

for his birthday and that the trip cost $520.00, that he went to one Steelers game and

had been camping one time. He also testified that appellee had had at least $10,000.00

in her bank account when they got married and that appellee had used the same to pay

off appellant’s debts.

{¶12} Tara Blackstone, appellant’s girlfriend, testified at the hearing that she

went with appellant on a cruise in October of 2010 and on another cruise in March of

2010 and that they each paid their own way, for a total of $820.00 per person. She Licking County App. Case No. 11CA0088 5

further testified that they went to Disney in January 2011 and that they split the cost,

which was $608.00 a person, and that they were going to Las Vegas in May of 2011 for

appellant’s birthday. On cross-examination, Blackstone testified that appellant had

never paid for a trip for her. She also testified that she lived with appellant and his

parents and that she and appellant each paid a quarter of the utilities and also bought

groceries.

{¶13} With respect to retirement benefits, exhibits were produced at trial

showing that appellant had accrued OPERS [Ohio Public Employees Retirement

System] benefits of $106,832.64 during the marriage and that appellant had accrued

social security benefits of $6,219.88 in Social Security benefits and deferred

compensation of $25,617.14 during the parties’ marriage. In turn, appellee had accrued

$80,718.85 in Social Security benefits during the marriage. Appellee also had an

Ameriprise IRA with an approximate value of $2,400.00.

{¶14} As memorialized in a Judgment Decree of Legal Separation filed on

August 2, 2011, the trial court awarded appellee a legal separation. The trial court, in its

Decree, ordered that appellant pay spousal support to appellee in the amount of

$1,000.00 per month for a period of five (5) years. The trial court also awarded appellee

a judgment against appellant in the amount of $8,634.31, $5,000.00 of which was

toward appellee’s attorney fees. The trial court noted that appellant had testified that he

had no attorney fees because of work benefits “while [appellee] struggled to meet her

expenses.”

{¶15} Appellant now appeals from the trial court’s August 2, 2011 Judgment

Decree of Legal Separation, raising the following assignments of error on appeal: Licking County App. Case No. 11CA0088 6

{¶16} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

ORDERING APPELLANT TO PAY $1000.00 PER MONTH FOR SPOUSAL SUPPORT.

{¶17} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

ORDERING APPELLANT TO PAY $5,000 FOR APPELLEE’S ATTORNEYS FEES.”

I

{¶18} Appellant, in his first assignment of error, argues that the trial court erred

in ordering him to pay spousal support in the amount of $1,000.00 a month. We

disagree.

{¶19} This Court reviews the trial court's decision relative to spousal support

under an abuse of discretion standard. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554

N.E.2d 83 (1990). In order to find an abuse of discretion, we must determine the trial

court's decision was unreasonable, arbitrary or unconscionable and not merely an error

of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140

(1983).

{¶20} R.C. 3105.18(C)(1)(a) through (n) sets forth the factors a trial court must

consider in determining whether spousal support is appropriate and reasonable and in

determining the nature, amount, terms of payment, and duration of spousal support.

These factors include:

{¶21} “(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;

{¶22} “(b) The relative earning abilities of the parties; Licking County App. Case No. 11CA0088 7

{¶23} “(c) The ages and the physical, mental, and emotional conditions of the

parties;

{¶24} “(d) The retirement benefits of the parties;

{¶25} “(e) The duration of the marriage;

{¶26} “(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;

{¶27} “(g) The standard of living of the parties established during the marriage;

{¶28} “(h) The relative extent of education of the parties;

{¶29} “(i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;

{¶30} “ * * *;

{¶31} “(l) The tax consequences, for each party, of an award of spousal support;

{¶32} “ * * *;

{¶33} “(n) Any other factor that the court expressly finds to be relevant and

equitable.”

{¶34} In the case sub judice, the trial court, in its Decree, clearly considered the

above factors. The trial court noted that appellant was earning approximately

$60,000.00 a year from his employment with Franklin Township and another $19,448.00

from his employment with Kohl’s, for a total of approximately $79,000.00 per year, while

appellee earned approximately $30,000.00.1 The trial court determined that an award

of spousal support to appellee in the amount of $12,000.00 would “still leave a disparity

in the parties’ incomes $47,000-$67,000 for the plaintiff and $42,000 for the Defendant.” 1 Exhibit 25 showed that effective February 1, 2011, appellee’s annual salary would be $30,000.00 Licking County App. Case No. 11CA0088 8

While appellant takes issue with the trial court using a range of $20,000.00 for

appellant’s income, we note that appellant, at the hearing, testified that he believed that

his employment with Kohl’s would cease in the future due to circumstances beyond his

control. Thus, appellant’s own testimony supported the range of figures used by the trial

court.

{¶35} Moreover, the trial court also noted that the parties had been married for

16½ years and that both parties were currently healthy and able to work. Appellant

argues that the trial court erred in finding that he was currently in good health and notes

that he has a serious kidney disease, would need a transplant in the future and that he

saw a doctor every six months and was on medication. However, appellant himself

testified that his kidney disease was stable and that his health was fair. He also testified

that his disease did not keep him from working.

{¶36} The trial court, in awarding spousal support, also noted that appellant’s

retirement was better than appellee’s and that while appellant was able to maintain the

standard of living that the parties had established during their marriage, appellee was

not. With respect to retirement benefits, evidence was adduced at trial that appellant

had accrued OPERS benefits of $106,832.64 during the marriage and that appellant

had accrued social security benefits of $6,219.86 and deferred compensation of

$25,617.00 during the parties’ marriage. In turn, appellee had accrued $80,718.85 in

Social Security benefits during the marriage. Appellee also had an IRA with an

approximate value of $2,400.00. The trial court, in its Judgment Decree, awarded

appellant his OPERS benefits and appellee the deferred compensation account and her

IRA with Ameriprise. Licking County App. Case No. 11CA0088 9

{¶37} Moreover, there was testimony at the hearing that during the marriage, the

parties took vacations and owned a boat. While appellant, who was living with his

parents, went on two cruises and to Disney since the parties’ separation and also

obtained a new car, appellee was financially unable to do so. Appellant, at trial,

introduced Exhibit 28 which showed that, after his total expenses, he had a monthly

surplus of $527.28. Thus, as noted by the trial court, while appellant was able to

maintain his standard of living, appellee’s standard of living had decreased since the

parties’ separation.

{¶38} Finally, as noted by the trial court, appellee was awarded the marital

residence which had no equity2 in the same and was taking responsibility for the

mortgage, taxes and insurance on the residence.

{¶39} Based on the foregoing, we find that the trial court did not err in ordering

appellant to pay spousal support to appellee in the amount of $1,000.00 a month for a

period of five years. The trial court’s decision was not arbitrary, unconscionable or

unreasonable.

{¶40} Appellant’s first assignment of error is, therefore, overruled.

II

{¶41} Appellant, in his second assignment of error, argues that the trial court

erred in ordering him to pay $5,000.00 for appellee’s attorney fees. We disagree.

{¶42} An award of attorney's fees lies within the sound discretion of the trial

court. Rand v. Rand, 18 Ohio St.3d 356, 359, 481 N.E.2d 609 (1985). In order to find an

abuse of discretion, we must determine the trial court's decision was unreasonable,

2 While the house was valued at $165,000.00, there was a first mortgage on the same in the amount of $137,883.00 and a second mortgage in the amount of $30,635.00 Licking County App. Case No. 11CA0088 10

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

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

{¶43} R.C. 3105.73(A) reads as follows: “In an action for divorce, dissolution,

legal separation, or annulment of marriage or an appeal of that action, a court may

award all or part of reasonable attorney's fees and litigation expenses to either party if

the court finds the award equitable. In determining whether an award is equitable, the

court may consider the parties' marital assets and income, any award of temporary

spousal support, the conduct of the parties, and any other relevant factors the court

deems appropriate.”

{¶44} In the case sub judice, the trial court, in its August 2, 2011 Judgment

Decree, stated, in relevant part, as follows: “Defendant is awarded a judgment against

the Plaintiff for $8,643.31 ($5,000 toward Defendant’s attorney fees (Exhibit O) and

$3,643.31 for property division ….) The Plaintiff testified he had no attorney fees

because of work benefits while Defendant struggled to meet her expenses. Exhibit O

shows the Defendant’s attorney fees based on only one (1) day of trial. Further the

Court finds pursuant to R.C. 3105.73(A) an award of fees to the Defendant is equitable

in light of the circumstances.” The amount of attorney fees listed on Exhibit O was

$12,799.86.

{¶45} Appellant argues that he should not have been ordered to pay any of

appellee‘s attorney fees because appellee was financially able to do so. Appellant

maintains that appellee testified inconsistently about her monthly expenses and argues

that she had extra money every month. However, at the hearing, appellee testified that,

since the parties’ separation, she had paid down the marital debt by over $25,000.00. Licking County App. Case No. 11CA0088 11

Appellant admitted that appellee had significantly reduced their joint debt in the last year

and a half before the hearing. The trial court, in its Judgment Decree, noted that while

appellee, who earned substantially less than appellant, was paying down the debt,

appellant went and obtained a new car in either December of 2010, or January of 2011,

and took several cruises and trips. Appellant testified that his car payment was $590.00

a month.

{¶46} Based on the foregoing, we find that the trial court did not err in ordering

appellant to pay $5,000.00 for appellee’s attorney fees. The trial court’s decision was

not arbitrary, unconscionable or unreasonable.

{¶47} Appellant’s second assignment of error is, therefore, overruled.

{¶48} Accordingly, the judgment of the Licking County Court of Common Pleas,

Domestic Relations Division is affirmed.

By: Edwards, J.

Delaney, P.J. and

Hoffman, J. concur

______________________________

JUDGES

JAE/d0404 [Cite as Beach v. Beach, 2012-Ohio-3056.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CHRISTOPHER R. BEACH : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : BARBARA J. BEACH : : Defendant-Appellee : CASE NO. 11CA0088

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas, Domestic Relations Division, is

affirmed. Costs assessed to appellant.

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