[Cite as McNichols v. McNichols, 2013-Ohio-4935.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




CONNIE S. McNICHOLS                                 :   JUDGES:
                                                    :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                          :   Hon. John W. Wise, J.
                                                    :   Hon. Patricia A. Delaney, J.
-vs-                                                :
                                                    :
KENNEY W. McNICHOLS                                 :   Case No. 13-CA-28
                                                    :
        Defendant-Appellant                         :   OPINION




CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas, Case No. 2010 DR 803



JUDGMENT:                                               Affirmed




DATE OF JUDGMENT:                                       November 6, 2013




APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant

CHRISTOPHER M. SHOOK                                    KENNETH J. MOLNAR
33 West Main Street                                     JOHN R. CORNELY
P.O. Box 4190                                           21 Middle Street
Newark, OH 43058-4190                                   P.O. Box 248
                                                        Galena, OH 43021
LIcking County, Case No. 13-CA-28                                                      2

Farmer, P.J.

      {¶1}     On June 5, 1971, appellant, Kenney McNichols, and appellee, Connie

McNichols, were married. On May 20, 2010, appellee filed a complaint for divorce. A

final hearing commenced on May 22, 2012.           By judgment decree of divorce filed

January 25, 2013, the trial court granted the divorce and ordered appellant to pay

appellee $800.00 per month for spousal support. A nunc pro tunc judgment decree of

divorce to correct three scriveners errors was filed on March 1, 2013.

      {¶2}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶3}     "THE TRIAL COURT ERRED IN REQUIRING APPELLANT TO PAY

APPELLEE THE SUM OF EIGHT HUNDRED DOLLARS ($800.00) PER MONTH IN

SPOUSAL SUPPORT."

                                            II

      {¶4}     "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

AWARDING APPELLEE SPOUSAL SUPPORT AS TO THE AWARD ITSELF, AND

THE AMOUNT OF THE AWARD, THE SAME BEING UNJUST AND INEQUITABLE."

                                           I, II

      {¶5}     Appellant claims the trial court's award of spousal support to appellee,

both as to its appropriateness and its amount, was an abuse of discretion and against

the manifest weight of evidence. We disagree.

      {¶6}     A trial court has broad discretion in determining a spousal support award.

Neville v. Neville, 99 Ohio St.3d 275, 2003–Ohio–3624; Stevens v. Stevens, 23 Ohio
LIcking County, Case No. 13-CA-28                                                         3


St.3d 115 (1986). In order to find an abuse of that discretion, we must determine the

trial court's decision was unreasonable, arbitrary or unconscionable and not merely an

error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶7}   On review for manifest weight, the standard in a civil case is identical to

the standard in a criminal case: a reviewing court is to examine the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175 (1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52;

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179.

       {¶8}   R.C. 3105.18 governs spousal support.                Subsection (C) states the

following:



              (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;
LIcking County, Case No. 13-CA-28                                                        4


             (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;
LIcking County, Case No. 13-CA-28                                                      5


              (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.



       {¶9}   In its nunc pro tunc judgment decree of divorce filed March 1, 2013, the

trial court awarded appellee $800.00 a month in spousal support to be permanent in

nature, and was explicit in its detail on the issue:



              a) 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:

              Plaintiff is not currently employed due to health reasons. Plaintiff

       testified that at her last place of employment, A-Oak Farms, she earned

       $9.00 per hour and averaged 25 hours per week. This job consisted of

       manual labor arranging and caring for plants and flowers in various hotels

       and office buildings. Plaintiff earned $36,122.00 in 2010 ($30,522.00 from

       spousal support), and $2,912.00 in 2011.

              The defendant was employed as the owner of McNichols Roofing,

       Inc. and its subsidiaries from 1989 until December 2010 when the

       company filed for bankruptcy. Prior to 2010, the defendant testified he

       earned an average of approximately $62,000.00 per year and paid

       personal expenses from company accounts. The defendant testified that
LIcking County, Case No. 13-CA-28                                                      6


      in 2010 he paid himself a salary of $756.87 per week, and his income tax

      return for 2010 indicated $31,150.00 in gross income. Defendant's 2011

      income was $9,975.00, and he testified he earned $5,000.00 in 2012 as of

      the date of the trial.

             The defendant is currently employed part-time as an inside sales

      representative for 84 Lumber. Defendant started this employment in June

      of 2012 and earns $8.00 per hour, plus commission. Defendant estimates

      his income to be approximately $25,000.00 per year.

             b) The relative earning abilities of the parties:

             The plaintiff has a GED and a master of gardening certificate.

      Plaintiff's most recent employment was physical labor caring for plants and

      landscapes, wherein she earned $9.00 per hour.             During the parties'

      marriage, plaintiff was employed as a bookkeeper and secretary for

      McNichols Roofing.

             The defendant has worked in the roofing industry for approximately

      thirty years.    The defendant was the owner of a company, and is

      experienced in contracting for jobs and hiring people to do the work. The

      defendant testified that he lacks computer skills, and most jobs now

      require computer generated estimates and calculations.

             ***

             n) Any other factor the Court expressly finds to be relevant and

      equitable:
LIcking County, Case No. 13-CA-28                                                        7


             The plaintiff's income earning potential is greatly reduced due to her

      recent heart attack. Moreover, plaintiff has limited office skills and was

      most recently employed performing physical labor caring for plants and

      landscapes. While plaintiff currently receives assistance from her son in

      Georgia, she hopes the living arrangement is temporary and expects to

      pay $931.00 per month for housing expenses.

             The defendant's income is reduced from when he owned the

      roofing company as he is currently working for a lumber supply company

      on a minimal wage and commission basis.            The Court finds that the

      defendant has 25+ years of experience in the roofing and construction

      business, and therefore has the ability to earn more than he is currently is

      earning. The defendant should be able to leverage his past experience

      into a better paying position, even if he does not own his own company.



      {¶10} A review of the record demonstrates that the parties, married since 1971,

managed a successful roofing business, first from their home and later from a separate

location. T. at 126, 150, 222. In fact, they owned subsidiaries, rental properties, and a

marital residence.   T. at 125, 139, 185-187, 204-207.        Because of the economic

downturn in 2010, the business failed, necessitating a corporate bankruptcy and the

loss of basically all of their assets. T. at 224-225, 239-240, 281. As a result, appellant,

as the primary provider, was virtually unemployed from 2010 to 2012. T. at 105, 108,

281-282. However, during this time period, appellant helped with small remodeling jobs

for which he was compensated. T. at 104-107.
LIcking County, Case No. 13-CA-28                                                        8


       {¶11} Due to the filing of the divorce action, appellant's failure to pay temporary

spousal support in 2010, and the subsequent foreclosure of the marital residence,

appellee moved to Savannah, Georgia to live rent free in a home owned by her

daughter-in-law.   T. at 135-136, 159.    While in Savannah, appellee obtained a job

working twenty-five hours a week at $9.00 per hour maintaining interior plants and

landscaping. T. at 161-162, 169. Appellee worked up until she suffered a heart attack.

T. at 163-164. Thereafter, she lost her job because she could not obtain a work release

due to being on blood thinners. T. at 165-166. Appellee's debts included a hospital bill

of $38,000.00+ and a deficiency judgment on the foreclosed marital residence of

$64,000.00+. T. at 171-172, 213-214. Appellant had filed for personal bankruptcy

which freed him from the obligation on the marital residence deficiency judgment. T. at

239.

       {¶12} Appellant recently obtained employment, with the ability to earn

$25,000.00 per year if he worked full time. T. at 233-234. Appellant chose to give up

the roofing business because he was unable to do the work and did not have "today's

skills." T. at 109, 130, 231, 240-241. However, there was evidence that appellant

facilitated his sister in her new roofing business, and he mysteriously was able to repay

a $70,000.00+ loan in less than a year during the economic crisis at his business. T. at

57-59, 64, 249-251, 297-298, 301-304.

       {¶13} The evidence demonstrates that appellee has few marketable skills and is

unable to work verses appellant's choice not to return to his profession and his ability to

obtain a moderate job. We find no error in the trial court determining that spousal

support was appropriate given the forty-one year marriage.
LIcking County, Case No. 13-CA-28                                                         9

       {¶14} As explained by the Supreme Court of Ohio in Kunkle v. Kunkle, 51 Ohio

St.3d 64 (1990), 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 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.



       {¶15} Although the trial court did not set a date certain for termination of spousal

support, it did set forth various grounds that would result in the termination of spousal

support i.e., death of either party, appellee's remarriage or cohabitation with an

unrelated adult male. In addition, the trial court expressly retained jurisdiction to modify

the spousal support award upon a significant change of circumstances. Shoemaker v.

Shoemaker, 5th Dist. Knox App. No. 00CA13, 2000 WL 1862835 (December 15, 2000).

       {¶16} As for the $800.00 amount, appellant testified he was debt free because of

the bankruptcies and had minimal living expenses as he was living with a female friend

who "pays most of the bills." T. at 282. Appellee on the other hand had a $360.00

monthly car payment, a health care obligation of $38,000.00+, and the possibility of

collection on the marital residence deficiency judgment ($64,000.00+). T. at 144, 171-

172, 213-214. Appellee also will have to start paying rent. T. at 159-160.
LIcking County, Case No. 13-CA-28                                                      10


      {¶17} The trial court ordered appellant to pay one-half of the marital residence

deficiency judgment if appellee was required to pay it. Appellant argues this order

should impact spousal support; however, it was a division of marital debt under R.C.

3105.171.

      {¶18} Upon review, we find the evidence supports a spousal support award and

the trial court did not abuse its discretion in awarding appellee $800.00 per month.

      {¶19} Assignments of Error I and II are denied.

      {¶20} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.




                                             _______________________________
                                             Hon. Sheila G. Farmer



                                             _______________________________
                                             Hon. John W. Wise



                                             _______________________________
                                             Hon. Patricia A. Delaney


SGF/sg 1021
[Cite as McNichols v. McNichols, 2013-Ohio-4935.]


                   IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT



CONNIE S. McNICHOLS                                 :
                                                    :
        Plaintiff-Appellee                          :
                                                    :
-vs-                                                :       JUDGMENT ENTRY
                                                    :
KENNEY W. McNICHOLS                                 :
                                                    :
        Defendant-Appellant                         :       CASE NO. 13-CA-28




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to

appellant.




                                                    _______________________________
                                                    Hon. Sheila G. Farmer



                                                    _______________________________
                                                    Hon. John W. Wise



                                                    _______________________________
                                                    Hon. Patricia A. Delaney
