[Cite as Osborn v. Osborn, 2013-Ohio-5065.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
KERRY D. OSBORN : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13 CAF 03 0015 : KATHRYN N. OSBORN : : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Domestic Relations Division, Case No. 10 DR A 7 382
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 7, 2013
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
BEVERLY J. FARLOW ROBERT A. KOBLENZ 270 Bradenton Ave., Suite 100 35 East Livingston Ave. Dublin, OH 43017 Columbus, OH 43215 Delaware County, Case No.13 CAF 03 0015 2
Delaney, J.
{¶1} Plaintiff-Appellant Kerry D. Osborn appeals the February 6, 2013
judgment entry of the Delaware County Court of Common Pleas, Domestic Relations
Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Kerry D. Osborn (“Husband”) and Defendant-Appellee
Kathryn N. Osborn (“Wife”) were married on May 24, 1980. Two children were born as
issue of the marriage, K.A.O. born on December 17, 1992 and K.L.O. born on May 29,
1987.
{¶3} Husband and Wife separated on May 8, 2010. Husband filed a complaint
for divorce on July 26, 2010. Wife filed an answer and counterclaim on August 12,
2010.
{¶4} The matter came for trial before the magistrate on April 21, 2011. The
parties resolved many issues prior to trial, but relevant to this appeal, the issue of
spousal support remained pending. The following facts were adduced at the trial.
{¶5} At the time of the trial, Husband was 51 years of age and Wife was 52
years of age. Both parties were in good health. During the marriage, Husband worked
full time and Wife earned her degree in nursing. Wife went to work full time as a nurse
in 2008. Husband worked at Parsons Brinckerhoff Inc. as an area manager earning
$78.21 per hour with an annual income of $162,676.80. Wife was employed at Ohio
Health as a registered nurse earning $36.92 per hour with an annual income of
$76,603.29. Delaware County, Case No.13 CAF 03 0015 3
{¶6} During the marriage, the parties incurred significant credit card debt
estimated to be approximately $100,000.
{¶7} When the parties separated, Wife left the marital home and moved to a
rental residence. K.A.O. lived with Wife. K.A.O. turned eighteen years old on
December 17, 2010. She graduated from high school in June 2011.
{¶8} After trial but before the magistrate rendered a decision, Husband filed a
motion to modify temporary orders on March 16, 2012. Husband requested a reduction
in spousal support because he stated his job with Parsons Brinckerhoff Inc. was
terminated on March 16, 2012.
{¶9} The magistrate issued a decision on June 26, 2012. Relevant to this
appeal, the magistrate’s decision ordered Husband to pay spousal support to Wife in
the amount of $2,000 per month for a term of 156 months, calculated from the date of
trial. The magistrate recommended the trial court reserve jurisdiction for the
modification of duration and amount of the spousal support.
{¶10} Husband filed objections to the magistrate’s decision on July 20, 2012.
Wife filed cross-objections.
{¶11} The trial court determined additional evidence was necessary on
Husband’s motion to modify temporary orders. A hearing was held on August 31, 2012.
At the hearing, Husband testified Parsons Brinckerhoff Inc. paid him severance pay in
the amount of $81,338.00 less tax and payroll deductions beginning March 2012. This
equated to six months gross pay. Husband obtained new employment with Michael
Baker, Jr., Inc. on June 25, 2012. His annual compensation was $130,000 per year. Delaware County, Case No.13 CAF 03 0015 4
Starting June 2012, Husband was collecting both severance and a full time salary from
his new employment.
{¶12} Wife testified she required joint replacement surgery on both knees
scheduled for September 21, 2012 and shoulder surgery three months later. The
surgeries required Wife to go on disability from her employment, thereby reducing her
salary by approximately $30,000.
{¶13} On January 13, 2013, the trial court overruled the parties’ objections. The
Decree of Divorce was filed on February 6, 2013. It is from this judgment Husband now
appeals.
ASSIGNMENTS OF ERROR
{¶14} Husband raises six Assignments of Error:
{¶15} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
AWARDING SPOUSAL SUPPORT TO DEFENDANT-APPELLEE.
{¶16} “II. THE COURT ERRED AS A MATTER [OF] LAW IN CONSIDERING
DEFENDANT-APPELLEE’S EXPENSES FOR THE PARTIES’ ADULT CHILDREN IN
DETERMINING SPOUSAL SUPPORT.
{¶17} “III. THE COURT ABUSED ITS DISCRETION IN ASSIGNING INCOME
TO PLAINTIFF-APPELLANT IN THE AMOUNT OF $162,676.80.
{¶18} “IV. THE TRIAL COURT ERRED AS A MATTER OF LAW IN BASING
SPOUSAL SUPPORT AWARD ON RECEIVING THE BENEFIT OF GREAT EARNING
POWER.
{¶19} “V. THE TRIAL COURT ABUSED ITS DISCRETION BY SETTING THE
DURATION OF SPOUSAL SUPPORT AT 156 MONTHS FROM THE DATE OF TRIAL. Delaware County, Case No.13 CAF 03 0015 5
{¶20} “VI. THE COURT ERRED AS A MATTER OF LAW IN FAILING TO
UNDERTAKE A DE NOVO REVIEW OF OBJECTIONS.”
ANALYSIS
I., II., IV.
{¶21} We consider Husband’s first, second, and fourth Assignments of Error
together because they involve interrelated issues under R.C. 3105.18(C)(1). Husband
argues the trial court abused its discretion in awarding Wife spousal support and used
incorrect considerations in making the decision. We disagree.
{¶22} A trial court's decision concerning spousal support may be altered only if it
constitutes an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d
83 (1990). An abuse of discretion connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St .3d 217, 450 N.E.2d 1140 (1983). R.C.
3105.18(C)(1)(a) through (n) sets forth the factors a trial court is to consider in
determining whether spousal support is appropriate and reasonable, and in determining
the nature, amount, terms of payment, and duration of spousal support:
(C)(1) In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms of payment,
and duration of 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; Delaware County, Case No.13 CAF 03 0015 6
(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;
(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; Delaware County, Case No.13 CAF 03 0015 7
(n) Any other factor that the court expressly finds to be relevant and
equitable.
{¶23} Trial courts must consider all the factors listed in R.C. 3105.18(C). This
court has previously held that a trial court need not acknowledge all evidence relative to
each and every factor listed in R.C. 3105.18(C), and we may not assume that the
evidence was not considered. Hutta v. Hutta, 177 Ohio App.3d 414, 2008–Ohio–3756,
894 N.E.2d 1282, ¶ 27 (5th Dist.), citing Clendening v. Clendening, 5th Dist. Stark
No.2005CA00086, 2005–Ohio–6298, ¶ 16, citing Barron v. Barron, 5th Dist. Stark
No.2002CA00239, 2003–Ohio–649. The trial court need set forth only sufficient detail
to enable a reviewing court to determine the appropriateness of the award. Id., citing
Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988).
{¶24} The magistrate’s decision in the present case conducted a thorough and
detailed review the R.C. 3105.18(C) factors. We first address the specific factors raised
as errors in Husband’s appeal to determine on the whole whether the trial court abused
its discretion in awarding Wife spousal support.
Emancipated Children
{¶25} Husband argues in his second Assignment of Error the trial court erred in
considering Wife’s expenses for caring for their adult child, K.A.O. K.A.O. was born on
December 17, 1992. When Wife left the marital home, K.A.O. came to live with Wife.
At the time of trial, K.A.O. was 18 years old. She was scheduled to graduate high
school in June 2011.
{¶26} In considering the R.C. 3105.18(C)(1)(n) factor, the magistrate’s decision
stated: Delaware County, Case No.13 CAF 03 0015 8
The Magistrate finds that the continued needs of the two daughters, and
their expectations have also driven the parties’ finances. The testimony
was probative that the youngest daughter looks to the mother for her
assistance – even though emancipated and even [though] it is assumed
that the child will be somewhat self-sustaining.
(Magistrate’s Decision, June 26, 2012)
{¶27} Husband raised this finding as error in his objections to the magistrate’s
decision. The trial court overruled the objection and held:
The sixth objection concerns the Magistrate’s findings that since the
children are emancipated, the parties no longer have a legal obligation for
their children but may feel a need to assist them to pursue a higher
education or assist them to self-sufficiency. The Court determines the
latter phrase was merely insight and not included in any conclusion of law.
(Judgment Entry, Jan. 2, 2013)
{¶28} There is no dispute of fact that Husband’s daughter reached the age of
majority during the divorce proceedings. There was no evidence presented that K.A.O.
was a special needs person as defined by R.C. 3119.86. Wife testified K.A.O. was
employed but K.A.O. did not contribute towards household expenses. (T. 167). K.A.O.
had applied to Columbus State and was seeking scholarships to pay for her college
education. (T. 166). Wife offered to allow K.A.O. to live at home while K.A.O. attended
college, but K.A.O. wanted to move out. (T. 167).
{¶29} The magistrate’s decision conducted a detailed analysis of all the R.C.
3105.18(C) factors in order to reach the conclusion to award spousal support to Wife. Delaware County, Case No.13 CAF 03 0015 9
As the trial court ruled, the magistrate’s consideration of the parents’ duties for their
daughter who turned 18 years old during the divorce proceedings was not a conclusion
of law as to spousal support, but merely analysis under the R.C. 3105.18(C) factors.
{¶30} Husband’s second Assignment of Error is overruled.
Greater Earning Power
{¶31} Husband argues in his fourth Assignment of Error the trial court erred
when it based the spousal support award on Husband’s greater earning power. The
June 26, 2012 magistrate’s decision held:
As stated above, the Husband is requesting that no spousal
support be awarded as being appropriate, as the wife has a source of
income and career – the wife thinks that because of the marriage duration
– at least there should be an equalization without a duration. Neither
position is appropriate or reasonable. Certainly there is a consideration
for the husband having sufficient greater income that he is paying
expenses at an accelerated rate, to be able to be ordered to have the wife
receive the benefit of his greater earning power. On the other hand the
husband is not responsible to assist the wife until she dies. She is
gainfully employed and has the ability to earn her own source of income;
provide for her own source of retirement, without the husband seeing her
benefits after retirement that have been already accounted for in part.
{¶32} The trial court overruled Husband’s objections to the magistrate’s
decision: Delaware County, Case No.13 CAF 03 0015 10
The ninth objection states it was error for the Magistrate to find that
the Plaintiff had sufficient greater income that he is able to be ordered to
have the Defendant receive the benefit of his greater earning power.
Plaintiff claims there is no Ohio law that includes “sufficiency of income” as
a basis to pay monies to the Defendant. ORC 3105.18(C)(1) provides
factors in considering an award of spousal support that include the relative
earning abilities of the parties and the incomes of the parties.
Consideration of Plaintiff’s “sufficient enough greater income” is within
those factors.
{¶33} R.C. 3105.18(C)(1)(b) allows the trial court to consider the relative earning
abilities of the parties. Earning ability involves “both the amount of money one is
capable of earning by his or her qualifications, as well as his or her ability to obtain such
employment.” Carroll v. Carroll, 5th Dist. Delaware No.2004–CAF–05035, 2004–Ohio–
6710. The goal is “not to arrive at a specific figure * * * rather, the end result is to
consider and weigh the spouses' relative earning abilities along with other factors in
arriving at reasonable spousal support.” Valentine v. Valentine, 9th Dist. Medina No. 11
CA0088–M, 2012–Ohio–4202 at ¶ 5.
{¶34} Husband argues the trial court incorrectly considered the sufficiency of
Husband’s income in determining whether to award spousal support. Considering and
weighing the spouse’s relative earning abilities includes considering the sufficiency of
the parties’ income. The evidence in this case shows that Husband earned more
income than Wife did during the duration of the parties’ marriage. Pursuant to R.C. Delaware County, Case No.13 CAF 03 0015 11
3105.18(C)(1)(b), the trial court properly considered the parties’ respective earning
abilities.
{¶35} Husband’s fourth Assignment of Error is overruled.
Spousal Support
{¶36} The trial court awarded Wife spousal support in the amount of $2,000 per
month for 156 months. Husband argues the trial court abused its discretion when it
awarded Wife spousal support. He contends Wife earns sufficient income to be self-
supporting.
{¶37} Wife testified at the August 31, 2012 hearing that she required surgery on
her knees and shoulder. The surgery would make it necessary for Wife to be on
disability for six months from September 2012, which could reduce her income by
$30,000 per year.
{¶38} Further, this was a long-term marriage. The parties were married for 31
years. The magistrate’s decision analyzed in detail the presumptions under the law as
to spousal support for a marriage of long duration. The trial court did not order
permanent spousal support. It ordered spousal support to be for a period of time that
would equal the time Wife would be able to access Husband’s social security account
without any substantial benefit reduction for early application. In Kunkle v. Kunkle, 51
Ohio St.3d 64, 554 N.E.2d 83 (1990), the Ohio Supreme Court held, at paragraph one
of the syllabus: “Except 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 sustenance alimony should provide for the Delaware County, Case No.13 CAF 03 0015 12
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.” We held Kunkle
should not be read to mandate permanent spousal support in marriages of long
duration. Hutta v. Hutta, 177 Ohio App.3d 414, 2008-Ohio-3756, 894 N.E.2d 1282, ¶ 40
(5th Dist.).
{¶39} Under the totality of the circumstances, we find no abuse of discretion in
the trial court's decision regarding spousal support and our review of the record reveals
the presence of credible evidence supporting both the magistrate and the trial court's
determinations. Husband’s first Assignment of Error is overruled.
III.
{¶40} Husband argues in his third Assignment of Error the trial court erred in
assigning income to Husband in the amount of $162,676.80.
{¶41} At the time of the original trial, husband was employed by Parsons
Brinckerhoff Inc. He earned $78.21 per hour with an annual income of $162,676.80.
On March 16, 2012, Parsons Brinckerhoff Inc. terminated Husband’s employment and
paid him severance pay in the amount of $81,338.00 less tax and payroll deductions
beginning March 2012. This equated to six months gross pay. Husband obtained new
employment with Michael Baker, Jr., Inc. on June 25, 2012. His annual compensation
was $130,000 per year. Starting June 2012, Husband was collecting both severance
and a full time salary from his new employment. The magistrate’s decision was filed on
June 26, 2012, establishing Husband’s income as $162,676.80.
{¶42} The trial court held a hearing on August 31, 2012 based on Husband’s
motion to modify. Husband argued the trial court should reduce his spousal support Delaware County, Case No.13 CAF 03 0015 13
obligation because of his job termination. The severance income ended on October 1,
2012, reducing his annual income to $130,000.
{¶43} The trial court ruled on Husband’s motion to modify and objections to the
magistrate’s decision in its January 2, 2013 judgment entry. The trial court overruled
the objection as to the amount of income assigned to Husband. The trial court found at
the time of the magistrate’s decision, Husband was earning $24,389.73 per month
based on his severance pay and annual income from his new employment.
{¶44} Husband argues the severance pay was not a monthly income, but rather
a lump sum payment. However, the record shows the severance package while paid in
lump sum format, represented six months’ pay. From 2011 to October 2012, Husband
earned $162,676.80. We find no abuse of discretion in the decision to assign income to
Husband in the amount of $162,676.80 based on the evidence presented at the April
21, 2011 hearing and August 31, 2012 hearing.
{¶45} Husband’s third Assignment of Error is overruled.
V.
{¶46} Husband argues in his fifth Assignment of Error that the trial court abused
its discretion in setting spousal support for a term of 156 months from the date of trial.
We disagree.
{¶47} Trial was April 21, 2011. 156 months, or 13 years, from April 21, 2011 is
April 21, 2024. Husband’s date of birth is August 10, 1959. On April 21, 2024,
Husband will be 64 years old. Delaware County, Case No.13 CAF 03 0015 14
{¶48} As we stated in the analysis of the first Assignment of Error, the
magistrate’s decision analyzed in detail the presumptions under the law as to spousal
support for a marriage of long duration. The parties were married for 31 years.
{¶49} As we found above, there was no abuse of discretion for the trial court to
award Wife spousal support. The trial court did not order permanent spousal support. It
ordered spousal support to be for a period of time that would equal the time Wife would
be able to access Husband’s social security account without any substantial benefit
reduction for early application. The term was 156 months from the date of trial.
{¶50} Husband argues the trial court committed a mathematical error in
determining the duration of the spousal support. Husband states if the trial court’s intent
was for Wife to have spousal support until she could access Husband’s social security,
the trial court’s calculation of 156 months was incorrect. The spousal support duration
should be 124 months or when Husband turns 62. We disagree. The trial court’s
decision states, “wife would be able to access her husband’s social security account
without any substantial benefit reduction for early application.” Early application for
social security is available to Husband at age 62, but results in a substantial benefit
reduction. When Husband is approximately age 65, Wife can access Husband’s social
security account without any substantial benefit reduction for early application, per the
trial court’s order. This equates 156 months.
{¶51} Husband’s fifth Assignment of Error is overruled. Delaware County, Case No.13 CAF 03 0015 15
VI.
{¶52} Husband contends in his final Assignment of Error that the trial court failed
to conduct a de novo review of the evidence when it ruled on the parties’ objections to
the magistrate’s decision.
{¶53} Civ.R. 53(D)(4)(d) states:
If one or more objections to a magistrate's decision are timely filed, the
court shall rule on those objections. In ruling on objections, the court shall
undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and
appropriately applied the law. Before so ruling, the court may hear
additional evidence but may refuse to do so unless the objecting party
demonstrates that the party could not, with reasonable diligence, have
produced that evidence for consideration by the magistrate.
{¶54} Husband filed seventeen objections and fifteen supplemental objections to
the magistrate’s decision. The trial court held a hearing on August 31, 2012 to take
additional evidence on spousal support and the division of the marital assets and
liabilities. In the trial court’s January 2, 2013 judgment entry, the trial court reviewed
each of Husband’s thirty-two objections to the magistrate’s decision. The judgment
entry states the trial court reviewed the magistrate’s decision and the transcript to enter
its rulings on the objections. The trial court complied with Civ.R. 53(D)(4)(d).
{¶55} Husband’s sixth Assignment of Error is overruled. Delaware County, Case No.13 CAF 03 0015 16
CONCLUSION
{¶56} The six Assignments of Error of Plaintiff-Appellant Kerry D. Osborn are
overruled.
{¶57} The judgment of the Delaware County Court of Common Pleas, Domestic
Relations Division is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Farmer, J., concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER