Schenck v. Schenck

2013 Ohio 991

• Court: Ohio Court of Appeals
• Decided: March 18, 2013
• Docket: CA2012-08-150
• Status: Published

Opinion

[Cite as Schenck v. Schenck, 2013-Ohio-991.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

PATRICK JAY SCHENCK, :

Plaintiff-Appellant, : CASE NO. CA2012-08-150

: OPINION - vs - 3/18/2013 :

ROSA I. SCHENCK, :

Defendant-Appellee. :

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DR2011-08-0961

Patrick A. Binns, 102 East State Street, Trenton, Ohio 45067-1528, for plaintiff-appellant

Vincent A. Sanzone, Jr., 1600 First Avenue, Middletown, Ohio 45044, for defendant-appellee

PIPER, J.

{¶ 1} Plaintiff-appellant, Patrick Schenck, appeals a decision of the Butler County

Court of Common Pleas, Domestic Relations Division, regarding the determination of spousal

support and the allocation of assets and liabilities following his divorce from defendant-

appellee, Rosa Schenck.

{¶ 2} Patrick Schenck ("Husband") and Rosa Schenck ("Wife") were married on

November 26, 1997. The couple had two children, born on July 24, 1998 and February 17, Butler CA2012-08-150

2000. On August 23, 2011, Husband filed a complaint for divorce. After a hearing on the

merits, the trial court issued a Decision and Order on April 19, 2012, wherein the court made

findings as to spousal support and parenting rights. The court also found Wife to be

voluntarily underemployed, and imputed income to her to arrive at a spousal support award

to Wife of $739.50 per month for a term of four years. The order also stated that the parties

had stipulated to the division of household goods, bank accounts, and all marital assets and

debts. On July 5, 2012, the trial court issued a final Decree of Divorce, which incorporated

the April 19, 2012 order in full.

{¶ 3} Husband now appeals, raising three assignments of error for review. For ease

of analysis, we will address Husband's first and second assignments of error together.

{¶ 4} Assignment of Error No. 1:

{¶ 5} THE TRIAL COURT ERRED TO THE DETRIMENT OF THE PLAINTIFF-

APPELLANT IN AWARDING A SUBSTANTIAL AMOUNT OF SPOUSAL SUPPORT TO THE

DEFENDANT-APPELLEE WHERE THE DEFENDANT-APPELLEE WAS VOLUNTARILY

UNDEREMPLOYED AND THE TRIAL COURT FOUNT [sic] THE DEFENDANT-APPELLEE

WAS VOLUNTARILY UNDEREMPLOYED.

{¶ 6} Assignment of Error No. 2:

{¶ 7} THE TRIAL COURT ERRED TO THE DETRIMENT OF THE PLAINTIFF-

APPELLANT IN THAT THE TRIAL COURT FAILED TO ANALYZE THE STATUATORY

FACTORS LISTED IN O.R.C. 3105.18 IN MAKING THE SPOUSAL SUPPORT AWARD.

[sic]

{¶ 8} Taken together, Husband's first and second assignments of error allege that the

trial court erred in finding that spousal support was appropriate and reasonable.

{¶ 9} "It is well-established that a trial court has broad discretion in determining

whether an award of spousal support is proper based on the facts and circumstances of each -2- Butler CA2012-08-150

case." Ohmer v. Renn-Ohmer, 12th Dist. No. CA2012-02-020, 2013-Ohio-330, ¶ 27; Kunkle

v. Kunkle, 51 Ohio St.3d 64, 67 (1990). In turn, "absent an abuse of discretion, a spousal

support award will not be disturbed on appeal." Ohmer at ¶ 27, quoting Hutchinson v.

Hutchinson, 12th Dist. No. CA2009-03-018, 2010-Ohio-597, ¶ 16. An abuse of discretion is

more than error of law or judgment; it requires a finding that the trial court's attitude was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

{¶ 10} Husband first argues the trial court abused its discretion by awarding spousal

support to Wife when it had already determined that Wife was voluntarily underemployed.

Specifically, Husband contends that "[t]he question for this court is how someone who

chooses not to work * * * is entitled to spousal support because she chooses not to work."

(Emphasis sic.)

{¶ 11} Husband is essentially asking us to find that voluntary underemployment is an

automatic bar to a spousal support award. However, he has not cited any authority to

support his position. Accordingly, we reject this argument.

{¶ 12} Husband next contends that the trial court failed to consider the factors in R.C.

3105.18 in awarding spousal support.

{¶ 13} At the outset, we note that under R.C. 3105.18, there is no requirement that the

trial court make specific findings of fact regarding its award of spousal support. In addition,

here, the record indicates that Husband did not request specific findings of fact and

conclusions of law pursuant to Civ.R. 52 regarding the trial court's spousal support order. In

the absence of a request for separate findings of fact and conclusions of law, "the trial court

need only consider the factors set forth in R.C. 3105.18; it need not list and comment upon

each of them." Carman v. Carman, 109 Ohio App.3d 698, 703 (12th Dist.1996), quoting

Adams v. Adams, 12th Dist. No. CA94-02-011, 1994 WL 372227, * 4 (July 18, 1994). See -3- Butler CA2012-08-150

also Zollar v. Zollar, 12th Dist. No. CA2008-03-065, 2009-Ohio-1008, ¶ 44. Thus, when a

party does not request findings of fact and conclusions of law, we will presume that the trial

court considered all the factors listed in R.C. 3105.18 and all other relevant facts. Carman at

703, citing Cherry v. Cherry, 66 Ohio St.2d 348, 356 (1981).

{¶ 14} R.C. 3105.18(C)(1) contains 14 factors that the trial court must consider in

determining if spousal support is appropriate. Kedanis v. Kedanis, 12th Dist. No. CA2012-

01-015, 2012-Ohio-3533, ¶ 8.

{¶ 15} R.C. 3105.18(C)(1) states that the following should be considered:

(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;

(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 -4- Butler CA2012-08-150

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.

{¶ 16} The primary focus of Husband's second argument is on R.C. 3105.18(C)(1)(b),

namely, "[t]he relative earning abilities of the parties * * *." In particular, he argues that the

trial court failed to impute sufficient income to Wife because she was voluntarily

underemployed.

{¶ 17} Ohio courts have determined that 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. No. 2004-CAF-05035, 2004-Ohio-

6710, ¶ 22, quoting Haniger v. Haniger, 8 Ohio App.3d 286, 288 (10th Dist.1982). When

considering the relative earning abilities of the parties in connection with an award of spousal

support, courts need not restrict their inquiry to the amount of money actually earned, but

may also hold a person accountable for the amount of money the person could have earned

if he or she had made the effort. Moore v. Moore, 12th Dist. No. CA2006-09-066, 2007-Ohio-

4355, ¶ 66. Thus, a court may impute income to a party who is voluntarily underemployed, or

otherwise not working up to his or her full earning potential. Id. As with other spousal

support determinations, findings of whether a party is voluntarily underemployed, and the

amount of income that should be imputed to him or her, if any, are factual determinations to

be made by the trial court based on the circumstances of each particular case. Id. at ¶ 67.

The trial court's determination of these issues shall not be disturbed absent an abuse of

discretion. Id. -5- Butler CA2012-08-150

{¶ 18} In the context of child support, R.C. 3119.01 lists criteria to be considered in

determining the amount of income to impute to a parent. Those factors include the parent's

prior employment experience and education, the parent's increased earning capacity

because of experience, whether there is evidence that the parent has the ability to earn the

imputed income, and any other relevant factor. R.C. 3119.01(C)(11)(a)(i)-(xi). The statutory

section on spousal support is less explicit on the issue of imputing income to a spouse who is

voluntarily unemployed or voluntarily underemployed. Nevertheless, we have consistently

approved a trial court's imputation of income for purposes of determining spousal support.

See Moore, 2007-Ohio-4355 at ¶ 65; Rotte v. Rotte, 12th Dist. No. CA2004-10-249, 2005-

Ohio-6269.

{¶ 19} We first note that neither party disputes the trial court's finding that Wife was

voluntarily underemployed. Husband only argues that the trial court imputed an

unreasonably low amount of income to Wife. We disagree.

{¶ 20} During the final hearing on the divorce, Wife testified that she worked four to

eight hours per week as an interpreter with Vocallink at a rate of $18 per hour. Wife stated

that she was able to create her own schedule and that she choose to work such low hours.

At first, Wife indicated that it was possible to work as many as 40 hours per week, but she

later clarified that she could actually only work 20 hours per week. She explained that

Vocalink limited its employees to four, one-hour appointments per weekday, except during

emergencies.

{¶ 21} In determining Wife's imputed income, the trial court considered this evidence,

as well as Wife's testimony that she was in school two nights a week to earn her bachelor's

degree in social work, and that she needed three more years to complete her education.

Wife also stated that she did not work during the marriage in order to care for the parties'

children. After reviewing this testimony, the trial court imputed 14 hours per week at $18 per -6- Butler CA2012-08-150

hour for 48 weeks, for a total annual income of $12,096.

{¶ 22} We find that the trial court did not abuse its discretion in calculating the level of

Wife's imputed income. First, contrary to Husband's assertion, we do not believe that it was

unreasonable for the court to impute 14, rather than 40, hours of work to Wife, given her

testimony that her employer generally limited her workweek to 20 hours. Additionally, during

the marriage, Wife sacrificed her earning potential to rear the parties' two children, and

Husband did not present any evidence that Wife had the skill set or opportunity to earn a

higher wage, at least until she obtained her college degree. Under these circumstances, we

reject Husband's argument that the trial court imputed an insufficient amount of income to

Wife, as the amount imputed accurately reflected Wife's earning ability. See Petrusch v.

Petrusch, 2nd Dist. No. 15960, 1997 WL 102014, * 4 (Mar. 7, 1997) ("the amount imputed

must bear some rational relationship to the party's earning ability").

{¶ 23} We also find that the trial court adequately reviewed the remaining factors in

R.C. 3105.18(C)(1).

{¶ 24} In its final entry, the court stated that it had considered the parties' prior

standard of living, the length of the marriage, and Wife's responsibilities to the children. R.C.

3105.18(C)(1)(e), (g), (m). Although Husband argues otherwise, the trial court also

considered the fact that Wife was voluntarily underemployed, as evidenced by the fact that it

imputed income to Wife. See R.C. 3105.18(C)(1)(b). The court also considered the

significant disparity between Wife's annual imputed income of $12,096 and Husband's

annual income of $50,000, in accordance with R.C. 3105.18(C)(1)(a).

{¶ 25} Accordingly, a review of the record indicates that the trial court heard the

testimony of the parties and considered the pertinent factors of R.C. 3105.18(C)(1) in making

its spousal support determination. We do not find that the trial court abused its discretion in

this matter. -7- Butler CA2012-08-150

{¶ 26} Husband's first and second assignments of error are overruled.

{¶ 27} Assignment of Error No. 3:

{¶ 28} THE TRIAL COURT ERRED TO THE DETRIMENT OF THE PLAINTIFF-

APPELLANT BY FAILING TO APPORTION THE INTERNAL REVENUE SERVICE DEBT

AND TAX REFUND TO THE DEFENDANT-APPELLEE AND FAILED TO REQUIRE HER

PAYMENT OF THE DEBT PROPORTIONATELY WITH PLAINTIFF-APPELLANT.

{¶ 29} In his final assignment of error, Husband contends that the trial court abused its

discretion when it failed to divide a $4,600 tax debt and $13,000 in tax refunds between the

parties as marital property.

{¶ 30} Husband did not preserve this issue for appeal, as he failed to raise his

objection before the trial court, despite having ample opportunity to do so.

{¶ 31} During the final hearing on the divorce, Husband, represented by counsel, told

the court that all issues had been resolved except for parenting and spousal support.

Further, Husband did not object when Wife confirmed with the court that "all of [their]

financials ha[d] been divided," and that Wife was satisfied with the division. See Presjak v.

Presjak, 11th Dist. No. 2009-T-0077, 2010-Ohio-1455, ¶ 39-52 (spouse waived a challenge

to the division of property on appeal, where spouse had stipulated to the division during the

final divorce hearing with the assistance of counsel); Thomas v. Thomas, 5 Ohio App.3d 94,

98 (5th Dist.1982) ("where * * * a party has initiated negotiations leading to an 'in-court'

settlement stipulation incorporating essentially all of his demands, he should not be permitted

to contend that the court in approving and adopting the bargain he struck has acted so

unfairly as to constitute an abuse of discretion").

{¶ 32} It is well-established that a party cannot raise new issues for the first time on

appeal. Hamilton v. Ebbing, 12th Dist. No. CA2011-01-001, 2012-Ohio-2250, fn. 3. Because

Husband did not raise this argument at any time below, we find that he waived this issue on -8- Butler CA2012-08-150

appeal.

{¶ 33} Husband's third assignment of error is overruled.

{¶ 34} Judgment affirmed.

RINGLAND, P.J., and M. POWELL, J., concur.

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