Schuh v. Schuh

2014 Ohio 4755

• Court: Ohio Court of Appeals
• Decided: October 27, 2014
• Docket: CA2014-01-007
• Status: Published

Opinion

[Cite as Schuh v. Schuh, 2014-Ohio-4755.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

RUDIGER SCHUH, : CASE NO. CA2014-01-007 Plaintiff-Appellee, : OPINION : 10/27/2014 - vs - :

PATRICIA SCHUH, :

Defendant-Appellant. :

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DR2012-12-1371

The Lampe Law Office, LLC, M. Lynn Lampe, 1248 Nilles Road, Suite 7, Fairfield, Ohio 45014, for plaintiff-appellee

John M. Holcomb, 6 South Second Street, Suite 311, Hamilton, Ohio 45011, for defendant- appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Patricia Schuh (Wife), appeals a decision of the Butler

County Court of Common Pleas, Domestic Relations Division, awarding her $153 a month in

spousal support.

{¶ 2} After 17 years of marriage, Patricia and Rudiger Schuh (Husband) were

divorced by decree on December 19, 2013. The parties have a son born in 1999. At the Butler CA2014-01-007

time of the divorce, Husband was 43 years old and employed as a quality engineer with the

Ford Motor Company, earning an annual income of $93,850.80. Husband also receives an

annual bonus which ranges from $2,500 to $6,000. Husband has a high school diploma,

completed an apprenticeship as an electrician, but does not have an engineering degree or a

college education.

{¶ 3} Wife was 50 years old, is a licensed cosmetologist, and has been a hairdresser

since she was 20 years old. She is self-employed as a hairdresser and a hair salon

owner/operator. The parties bought the salon in 2005. The parties' 2011 joint income tax

return shows that Wife's annual net income from her business is $28,854. Wife does not

deposit her tips into her personal or business bank account, but upon the advice of her

accountant, declares 8 to 12 percent of her receipts as tips on her income tax return. Wife

testified the $28,854 net income included the percentage of tips she claims as income. She

also testified she receives between $20 and $55 a day in tips. Wife does not keep track of

how much she earns in tips a year.

{¶ 4} Marital property and marital debts were divided between the parties. Each

party received 50 percent of the other party's retirement accounts. Because Wife received a

greater share of the marital property and none of the marital debts, equalization of the

property division was accomplished by allocating to Husband the sum of $13,658.01 from

Wife's half share of the net sale proceeds of the marital residence. With regard to their son,

the parties entered into a shared parenting plan, Husband was ordered to pay $840 a month

in child support, and the parties were ordered to equally divide any uncovered medical

expenses for the child.

{¶ 5} By decision filed on October 21, 2013, the trial court awarded Wife spousal

support as follows:

The Court considers most strongly the length of the marriage, the -2- Butler CA2014-01-007

disparity between [Husband's] income and [Wife's] income, the fact that [Wife] will have to obtain her own medical insurance or close her business to find work with benefits, and the prior standard of living of the parties.

The Court considers the exchange of child support in determining the amount of spousal support, and considers the parties' disparate incomes, even after the exchange of spousal support. The Court further considers the uncertainty of the availability and expense of health insurance for [Wife].

The Court finds that an exchange of spousal support is appropriate.

The trial court also found that (1) the parties were currently earning to their ability; (2)

Husband will accumulate significantly more retirement benefits than Wife; and (3) since the

parties' separation, Wife's standard of living is significantly lower than that of Husband. The

trial court stated it considered the tax consequences of the spousal support award.

{¶ 6} By divorce decree, the trial court ordered Husband to pay Wife $153 a month in

spousal support for 12 years. The trial court retained jurisdiction over both the amount and

duration of spousal support.

{¶ 7} Wife appeals, raising one assignment of error:

{¶ 8} THE TRIAL COURT ERRED IN AWARDING AN INADEQUATE AND

INEQUITABLE AMOUNT OF SPOUSAL SUPPORT FROM APPELLEE TO APPELLANT.

{¶ 9} Wife argues the trial court abused its discretion in awarding her $153 a month

in spousal support. Specifically, Wife first argues the trial court failed to consider the tax

consequences of the spousal support award in violation of R.C. 3105.18(C)(1)(l). Wife

asserts that the spousal support award is "tax-inefficient" because the trial court's decision

favors payment of child support over spousal support, and thus, fails to take advantage of the

differential tax rates of the parties. Wife also argues the trial court abused its discretion in

awarding her such a minimal amount of spousal support given the parties' lengthy marriage,

the great disparity in earnings, Husband's significantly greater retirement benefits through -3- Butler CA2014-01-007

employment, and the fact Wife will have to purchase her own health insurance.

{¶ 10} A trial court has broad discretion in determining whether an award of spousal

support is proper based on the facts and circumstances of each case. Ornelas v. Ornelas,

12th Dist. Warren No. CA2011-08-094, 2012-Ohio-4106, ¶ 40; Kunkle v. Kunkle, 51 Ohio

St.3d 64, 67 (1990). Absent an abuse of discretion, a spousal support award will not be

disturbed on appeal. Ornelas at id.

{¶ 11} After the division of marital property, a trial court may award reasonable

spousal support to either party in a divorce proceeding. R.C. 3105.18(B). In determining the

nature, amount, and terms of payment and whether the spousal support is "appropriate and

reasonable," the trial court must consider the factors listed in R.C. 3105.18(C)(1). As

applicable here, these factors include the parties' respective incomes, earning abilities, ages,

retirement benefits, educations, assets and liabilities, their standard of living during the

marriage, the duration of their marriage, and the tax consequences of a spousal support

award. R.C. 3105.18(C)(1)(a)-(e), (g)-(i), (l). A trial court is also free to consider any other

factor it deems relevant and equitable. R.C. 3105.18(C)(1)(n); Ornelas at ¶ 41.

{¶ 12} When awarding spousal support, a 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. Peters v. Peters, 12th Dist. Warren No. CA2009-

04-037, 2009-Ohio-5929, ¶ 17, citing Kaechele v. Kaechele, 35 Ohio St.3d 93 (1988). A "trial

court is not required to comment on each statutory factor; the record need only show that the

court considered the statutory factors when making the award." Gentile v. Gentile, 8th Dist.

Cuyahoga No. 97971, 2013-Ohio-1338, ¶ 44.

{¶ 13} Wife first argues the trial court failed to consider the tax consequences of the

spousal support award in violation of R.C. 3105.18(C)(1)(l), and asserts that the spousal

support award is "tax-inefficient." -4- Butler CA2014-01-007

{¶ 14} R.C. 3105.18(C)(1)(l) requires a trial court to consider "[t]he tax consequences,

for each party, of an award of spousal support." We find that the trial court considered and

addressed the tax consequences of its spousal support award as required by R.C.

3105.18(C)(1)(l). In its decision, the trial court stated it "completed a FinPlan analysis, and *

* * considered the tax consequences of an order of spousal support," and further stated that

"Spousal support will be taxable as income to [Wife] and deductible to [Husband] for tax 1 purposes." Gentile, 2013-Ohio-1338 at ¶ 46. In addition, attached to the trial court's

decision is a document entitled "Split Screen Summary Analysis – Annual" that includes a tax

analysis for both parties, including each party's "Tax Savings from Alimony."

{¶ 15} Notwithstanding Wife's assertion, R.C. 3105.18(C)(1) does not require a

spousal support award to be "tax-efficient," nor does it require a trial court to fashion a

spousal support award in the most tax advantageous manner or in a manner to obtain a net

tax savings. Rather, the statute only requires the trial court to consider the tax consequences

of a spousal support award in conjunction with several other factors. Campbell v. Campbell,

12th Dist. Warren No. CA2009-04-039, 2009-Ohio-6238, ¶ 23 (no factor should be viewed in

isolation; instead, courts must look to the totality of circumstances surrounding the award to

ensure there has been no abuse of discretion). We also note that unlike R.C.

3105.18(C)(1)(l), which only requires a trial court to consider the tax consequences of a

spousal support award, R.C. 3119.82 by contrast requires the trial court to consider "any net

tax savings" in determining which parent may claim the children as dependents for tax

purposes. The lack of similar language in R.C.3105.18(C)(1) undermines Wife's argument in

that regard.

1. "A FinPlan analysis is a computer generated calculation performed by the trial court that determines the amount of money each spouse contributes to the household." Lumpkin v. Lumpkin, 9th Dist. Summit No. 21305, 2003-Ohio-2841, ¶ 23, fn. 4. Many trial courts in several appellate districts use the FinPlan analysis when determining spousal and/or child support. Cramblett v. Cramblett, 7th Dist. Harrison No. 05 HA 581, 2006-Ohio- 4615, ¶ 55. -5- Butler CA2014-01-007

{¶ 16} In its decision, the trial court noted it "consider[ed] the exchange of child

support in determining the amount of spousal support." Wife states that the trial court first

determined the amount of the spousal support award and then used that amount to calculate

Husband's child support obligation. Wife asserts "this approach ignores the tax

consequences of the [spousal support] award," and notes that "the amount of a child support

award is not a statutory factor in spousal support calculation. Rather, it is an award of

spousal support that is a factor in child support guideline."

{¶ 17} It is difficult to understand the crux of Wife's argument. Wife seemingly argues

that a trial court must calculate spousal support before it can calculate child support.

However, the statutes governing spousal support and child support do not explicitly address

the order in which the support awards must be established. R.C. 3105.18(B) provides that a

trial court may award spousal support "after the court determines the division or

disbursement of property." R.C. 3105.18(B) does not mention child support. However, one

of the factors a trial court must consider in awarding spousal support is "the relative assets

and liabilities of the parties, including * * * any court-ordered payments by the parties." R.C.

3105.18(C)(1)(i). "Child support, as a 'court-ordered payment,' is a relevant factor in

determining spousal support." Glassner v. Glassner, 160 Ohio App.3d 648, 2005-Ohio-1936,

¶ 50 (5th Dist.); see also Cohoon v. Cohoon, 2d Dist. Montgomery No. 17728, 2000 WL

43705 (Jan. 21, 2000) (in determining spousal support, trial court is required to consider child

support obligation); Borer v. Borer, 3d Dist. Seneca No. 13-06-38, 2007-Ohio-3341.

Conversely, line 10 of the child support computation worksheet codified in R.C. 3119.022

allows for income adjustment for any "[a]nnual court-ordered spousal support paid to any

spouse or former spouse," and R.C. 3119.05(B) allows for deduction of any "court-ordered

spousal support actually paid." See also Albright v. Albright, 4th Dist. Lawrence No. 06CA35,

2007-Ohio-3709. -6- Butler CA2014-01-007

{¶ 18} Wife also seems to argue that the amount of the spousal support award should

have been greater as it would have benefited both parties. Instead, she asserts,"[b]y

favoring payment of child support over spousal support, the [trial] court has squandered the

possibility that, by taking advantage of the differential tax rates of the parties, Wife could

have realized more net after-tax income without reducing Husband's net after tax income."

{¶ 19} The trial court found that the marginal tax rate for Husband and Wife was 29.7

percent and 18.5 percent respectively. Based upon these tax rates, every additional $1,000

in child support would save Husband $297 in taxes while costing Wife $185 in taxes, for a net

savings of $112 (not including state taxes or consideration of any other tax deductions,

credits, etc. to which the parties may be entitled). Therefore, absent a significant increase in

the spousal support award, any net tax savings by the parties would be minimal.

{¶ 20} In addition, a child support determination "calculated pursuant to the basic child

support schedule and applicable worksheet through the line establishing the actual annual

obligation, is rebuttably presumed to be the correct amount of child support due." Mogg v.

McCloskey, 7th Dist. Mahoning No. 12 MA 24, 2013-Ohio-4358, ¶ 34; Wolf-Sabatino v.

Sabatino, 10th Dist. Franklin No. 12AP-1042, 2014-Ohio-1252 (where the basic schedule

and worksheet apply, the guideline amount is rebuttably presumed to be the correct amount

of child support to be awarded); R.C. 3119.03. Deviating from the trial court's calculation of

the child support amount would have required a finding that the guideline amount was unjust,

inappropriate, and not in the child's best interest. Further, Wife's spousal support is

terminable upon Wife's "remarriage or cohabitation," which events would not terminate the

child support award. Shifting child support in favor of a greater amount of spousal support for

tax purposes would not serve the child's best interest.

{¶ 21} We therefore find that the trial court properly considered the tax consequences

of the spousal support award as required under R.C. 3105.18(C)(1)(l). -7- Butler CA2014-01-007

{¶ 22} Wife also argues the trial court abused its discretion in awarding such a minimal

amount of spousal support given the parties' lengthy marriage, the great disparity in earnings,

Husband's significantly greater retirement benefits through employment, and the fact Wife

will have to purchase her own health insurance.

{¶ 23} Upon a thorough review of the record, we find that the trial court did not abuse

its discretion in awarding Wife $153 a month in spousal support. The trial court conducted

an exhaustive analysis of the factors under R.C. 3105.18(C)(1). Specifically, the trial court

strongly considered the length of the parties' marriage, the disparity between the parties'

incomes, the fact Wife will have to obtain her own medical insurance, and the prior standard

of living of the parties. See R.C. 3105.18(C)(1)(a), (b), (d), (e), (g), and (n). We find that the

record supports the trial court's findings under R.C. 3105.18(C)(1).

{¶ 24} We note Wife neither testified nor specified how much spousal support she was

requesting or needed. In addition, other than the fact she currently rents a house for $750 a

month, there was no evidence regarding her current and reasonably anticipated living

expenses. Although she knew she would be required to buy her own health insurance after

the divorce, Wife did not know how much it would cost her as she had not researched the

issue. The record also shows Wife is self-employed as a hairdresser and a hair salon

owner/operator. While she does not currently have renters, she has six vacant chairs in her

salon she could rent to other hairdressers. We note there is no evidence indicating that Wife

could not meet her monthly expenses based solely upon her income, let alone with the

addition of the spousal support award. We further note that the trial court retained

jurisdiction over both the amount and duration of spousal support.

{¶ 25} In light of the foregoing, we find that while the amount of the spousal support

award may be minimal, the trial court did not abuse its discretion in awarding Wife $153 a

month in spousal support for 12 years. See Vertrees v. Vertrees, 2d Dist. Clark No. 06-CA- -8- Butler CA2014-01-007

48, 2007-Ohio-2604 (upholding spousal support award of $100 a month despite parties'

lengthy marriage, great disparity in parties' incomes, and fact that wife was six years older

than husband and had significant health issues); Campbell, 2009-Ohio-6238 (upholding

spousal support award of $100 a year for seven years despite parties' lengthy marriage,

husband earning over $180,000, and fact that wife is no longer working following mental

breakdown); Tallman v. Tallman, 6th Dist. Fulton No. F-03-008, 2004-Ohio-895 (upholding

spousal support award of $1 a year for four years and rejecting husband's assertion the

award was an abuse of discretion).

{¶ 26} Wife's assignment of error is overruled.

{¶ 27} Judgment affirmed.

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

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