Swingle v. Swingle

2016 Ohio 402

• Court: Ohio Court of Appeals
• Decided: January 29, 2016
• Docket: CT2015-0035
• Status: Published

Opinion

[Cite as Swingle v. Swingle, 2016-Ohio-402.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

CONNIE R. SWINGLE : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. CT2015-0035 : MARK B. SWINGLE : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Domestic Relations Division, Case No. DB2013- 0637

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: January 29, 2016

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

SCOTT E. WRIGHT MILES D. FRIES 7662 Slate Ridge Blvd. 320 Main Street Reynoldsburg, OH 43068 P.O. Box 190 Zanesville, OH 43702-0190 Muskingum County, Case No. CT2015-0035 2

Delaney, J.

{¶1} Defendant-Appellant Mark B. Swingle appeals the May 7, 2015 Judgment

Entry Final Decree of Divorce issued by Muskingum County Court of Common Pleas,

Domestic Relations Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Plaintiff-Appellee Connie R. Swingle and Defendant-Appellee Mark B.

Swingle began a relationship in 1977. Wife, born on April 9, 1960, was 17 years old and

Husband, born on May 15, 1950, was 27 years old when they began cohabitating. Wife

graduated from high school in 1978.

{¶3} Wife helped her grandmother clean offices for forty-dollars a week until

approximately 1989 when her grandmother was too old to perform the work. Husband

allowed Wife to work with her grandmother because she was family, but Husband did not

want Wife to work outside of the home. Wife discontinued working and she maintained

the home and their other property.

{¶4} Wife and Husband separated in 1993. Wife moved out and purchased her

own home. Wife worked as a cook in a restaurant until 1997. In 1994, Wife and Husband

reconciled and Wife moved back into their home. Husband and Wife were legally married

on July 18, 1997. Wife quit her job and held no other form of employment outside of the

home for the duration of their marriage.

{¶5} Wife moved out of the marital home in 2012 and withdrew $78,000 from a

joint checking account. Wife deposited the funds into a new account held solely in her

name. Pursuant to an agreement between the parties, Wife withdrew $1,800.00 per

month from the account to pay her living expenses. Wife testified she was physically Muskingum County, Case No. CT2015-0035 3

disabled and unable to work due to cirrhosis of the liver. She was ineligible for social

security disability benefits because she lacked enough quarters of employment history to

qualify.

{¶6} Husband has ownership interest in various family businesses named

Swingle Drilling, Three Swing Property, SDI Steel, New Burley-Winter Pottery, and

Swingle Properties. Husband also managed rental properties owned by a family business.

In recent years, Husband’s sole income was from his employment with the family

business named Petro Ware. At the time of the hearing, Petro Ware was sold to another

company and Husband was retained only as an independent contractor, affecting

Husband’s income. Husband was 65 years old and considered applying for social security

benefits. Husband, and therefore Wife, lost health benefits when Petro Ware was sold.

{¶7} Wife filed a complaint for divorce on July 15, 2013. A hearing was held

before the magistrate on June 26, 2014. At the time of the hearing, Wife was 54 years old

and Husband was 65 years old. Wife requested the trial court establish a de facto

marriage date from 1977 to the date of the hearing. Wife also requested an equitable

distribution of the marital assets and spousal support.

{¶8} On July 15, 2014, the magistrate issued its decision. Relevant to this

appeal, the magistrate ordered Husband to pay Wife $1,450.00 per month in spousal

support. The term of spousal support was indefinite. The trial court retained jurisdiction

as to amount and duration.

{¶9} On September 25, 2014, Husband filed a motion for new trial. Husband

requested a new trial to introduce exhibits that were not available at the original hearing.

The trial court granted the motion for new trial. Muskingum County, Case No. CT2015-0035 4

{¶10} Husband and Wife submitted proposed amendments to the magistrate’s

decision in October 2014. Neither proposed amendment altered the award of spousal

support. The trial court issued an amended magistrate’s decision on November 3, 2014.

The original spousal support award remained the same.

{¶11} Husband filed objections to the amended magistrate’s decision on

December 1, 2014. Husband argued the magistrate erred in awarding spousal support to

Wife. Wife also filed objections to the amended magistrate’s decision.

{¶12} On March 11, 2015, the trial court overruled Husband’s objections as to

spousal support. The trial court approved and adopted the amended magistrate’s

decision. The judgment entry final decree of divorce was filed on May 7, 2015.

{¶13} It is from this judgment entry Husband now appeals.

ASSIGNMENT OF ERROR

{¶14} Husband raises one Assignment of Error:

{¶15} “THE AWARD OF SPOUSAL SUPPORT WAS ARBITRARY AS IT DID

NOT BALANCE APPELLEE’S NEED FOR SUPPORT WITH THE APPELLANT’S

ABILITY TO PAY.”

ANALYSIS

{¶16} Husband argues in his sole Assignment of Error that the trial court abused

its discretion when it awarded spousal support to Wife. We disagree.

{¶17} 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 Muskingum County, Case No. CT2015-0035 5

v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). R.C. 3105.18(C)(1)(a) through

(n) set forth 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;

(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;

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

limited to any court-ordered payments by the parties; Muskingum County, Case No. CT2015-0035 6

(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;

(n) Any other factor that the court expressly finds to be relevant and

equitable.

{¶19} Trial courts must consider all the factors listed in R.C. 3105.18(C). We have

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. The trial court must 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).

{¶20} Examining the trial court's findings relative to spousal support, we find no

abuse of discretion and our review of the record reveals the presence of credible evidence

supporting the trial court's determinations. The trial court noted it considered the factors Muskingum County, Case No. CT2015-0035 7

set forth in R.C. 3105.18 in determining the amount of spousal support. The trial court

stated:

The Court considered all relevant factors within ORC §3105.18(C)

including, but not limited to the following: wife’s total inability to generate

earned income because of her medical condition, wife’s ability to generate

a modest amount of investment income from the marital funds awarded to

her, the liquid nature of the assets awarded to wife, wife’s near total

economic dependence upon husband throughout the entire marriage (and

during their lengthy pre-marital co-habitation), wife’s need to maintain

health insurance, wife’s living expenses. husband’s age, husband’s

eligibility for social security retirement benefits and Medicare, husband’s

present lack of earned income, husband’s ability to continue working, the

speculative nature of any future income from husband’s business interests,

husband’s living expenses.

{¶21} The parties cohabitated for 20 years and were married for 17 years, during

which Wife was employed two times. For the majority of their relationship, Wife did not

work outside of the home at the behest of Husband. The evidence in the record shows

that while Wife was 54 years old, she was in poor health and physically unable to work.

{¶22} Husband argues the trial court's award of spousal support will not allow him

to meet his expenses. Creating negative cash flow does not necessarily lead to a finding

of an abuse of discretion. Compton v. Compton, 5th Dist. Stark No. 2014CA00207, 2015-

Ohio-4327, ¶ 20 citing Taylor v. Taylor, 5th Dist. Stark No.2013CA00130, 2013–Ohio–

4958, ¶ 23. The standard of living achieved by the parties during their marriage is often Muskingum County, Case No. CT2015-0035 8

altered upon termination. See, Kaechele, supra, 35 Ohio St.3d at 95, 518 N.E.2d 1197.

Equity requires that a party receive sufficient sustenance alimony to bring him or her to a

reasonable standard of living as that established during the marriage. See, Buckles v.

Buckles, 46 Ohio App.3d 102, 946 N.E.2d 950 (10th Dist.1988). The amended

magistrate’s decision thoroughly examined Husband’s financial circumstances and

determined an award of spousal support to Wife was appropriate and reasonable. The

record before this Court supports the trial court’s determination as to spousal support.

{¶23} Husband's sole Assignment of Error is overruled. Muskingum County, Case No. CT2015-0035 9

CONCLUSION

{¶24} The judgment of the Muskingum County Court of Common Pleas, Domestic

Relations Division is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Baldwin, J., concur.