[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
