[Cite as King v. King, 2019-Ohio-1561.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


John King                                        Court of Appeals No. E-17-072

        Appellee                                 Trial Court No. 2011-DR-0014

v.

Carol King                                       DECISION AND JUDGMENT

        Appellant                                Decided: April 26, 2019


                                          *****

        Robert M. Reno, for appellee.

        John M. Felter, for appellant.

                                          *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Carol King, appeals the November 20, 2017 judgment of the Erie

County Court of Common Pleas, Domestic Relations Division, which denied her

objections to the magistrate’s decision awarding, inter alia, appellee, John King, spousal

support. Because we find that the trial court did not abuse its discretion, we affirm.
       {¶ 2} The parties were married in May 1976, and no children were born issue of

the marriage. On February 2, 2011, appellee filed a complaint for divorce; at that time,

he did not specifically request spousal support. On April 26, 2011, appellant filed an

answer and counterclaim for divorce.

       {¶ 3} Prior to the trial in the matter, the parties entered into two sets of

stipulations. The March 16, 2012 stipulations divided multiple items of personal

property, including motor vehicles, lawn tools, and various household items. The June

11, 2012 stipulations divided real property and monetary assets and liabilities. Appellant

was awarded the marital home, accounts totaling $300,000, and stock. The parties

divided appellant’s OPERS account and appellee’s Social Security benefits with appellee

retaining the Social Security benefits due to its lower value. Appellee was awarded an

account valued at $123,000 and stock. To equalize the division, appellant was also

ordered to pay appellee $25,000.

       {¶ 4} On February 15, 2013, the matter proceeded to trial on the issue of spousal

support; both parties testified. The magistrate issued his decision on October 28, 2016.

Relevant to this appeal, the magistrate awarded appellee spousal support in varying sums

based on the following four distinct time periods:

              (1) March 2011-November 2012 at the rate of $1,252.88 per month

       reflecting appellant’s income of $46,249 and appellee’s income of $16,180.

              (2) December 2012-October 2016 at the rate of $660.71 per month

       reflecting appellant’s income of $46,249 and appellee’s of $30,352



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              (3) November 2016- after the payments began being processed

       through the Erie County Child Support Enforcement Agency, an additional

       $13.21 processing fee was added to the principal sum totaling $673.92

              (4) Once appellee began receiving a portion of appellant’s pension

       funds, the rate would decrease to a total payment of $397.50 per month and

       was to continue indefinitely.

       {¶ 5} Appellant filed objections to the magistrate’s decision on November 10,

2016. Appellant argued that in making the spousal support award the magistrate

improperly treated withdrawal of capital as income, applied an “unrealistic” rate of return

thereby inflating appellant’s income, failed to consider income available to appellee from

all sources, improperly awarded spousal support, including an arrears sum, and failed to

impute income to appellee. Appellee also filed an objection to the magistrate’s

determination that appellee was precluded from arguing in support of an additional

distributive award.

       {¶ 6} On November 20, 2017, the trial court issued its judgment entry rejecting the

majority of the parties’ objections; the court did change the commencement date of

spousal support from March 2011, to July 2012. The court then affirmed and adopted the

magistrate’s decision.

       {¶ 7} Appellant now raises six assignments of error for our review:

              1. The trial court abused its discretion by incorrectly calculating

       defendant/appellant’s income and incorrectly attributing income to

       defendant/appellant in determining spousal support award.

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               2. The trial court abused its discretion by incorrectly calculating

      plaintiff/appellee’s income and failing to consider other income available to

      plaintiff/appellee from all sources when determining spousal support

      award.

               3. The trial court abused its discretion by ordering

      defendant/appellant to pay spousal support and by ordering defendant-

      appellant to pay arrears on temporary spousal support.

               4. The trial court abused its discretion by failing to award

      defendant/appellant her share of plaintiff/appellee’s ESOP.

               5. The trial court abused its discretion by failing to impute minimum

      wage to the plaintiff-appellee in determining the amount of spousal support

      to be awarded.

               6. The trial court abused its discretion regarding its spousal support

      award.

                            Calculation of the Parties’ Incomes

      {¶ 8} Appellant’s first, second, and fifth assignments of error argue that the trial

court erred when calculating the parties’ incomes for purposes of awarding spousal

support. An appellate court reviews a trial court’s judgment awarding spousal support

under an abuse of discretion standard. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554

N.E.2d 83 (1990); Bowen v. Bowen, 132 Ohio App.3d 616, 626, 725 N.E.2d 1165 (9th

Dist.1999). “Even though a trial court has broad discretion in awarding spousal support,

its determination of whether spousal support is ‘appropriate and reasonable’ the nature,

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amount, duration and terms of payment of spousal support is controlled by the factors in

R.C. 3105.18(C)(1).” Crites v. Crites, 6th Dist. Wood Nos. WD-04-034, WD-04-042,

2004-Ohio-6162, ¶ 26-27, citing Schultz v. Schultz, 110 Ohio App.3d 715, 724, 675

N.E.2d 55 (10th Dist.1996). Although a trial court need not enumerate each R.C.

3105.18(C)(1) factor, it must demonstrate that it considered all the “relevant factors.”

Stockman v. Stockman, 6th Dist. Lucas No. L-00-1053, 2000 Ohio App. LEXIS 5843, *9

(Dec. 15, 2000).

       {¶ 9} Additionally, when awarding spousal support, “‘the trial court’s judgment

must contain sufficient detail to enable a reviewing court to determine that the spousal

support award is “fair, equitable and in accordance with the law.’” Crites, supra, at ¶ 27,

quoting Kaechele v. Kaechele, 35 Ohio St.3d 93, 97, 518 N.E.2d 1197 (1988).

       {¶ 10} For purposes of awarding spousal support, R.C. 3105.18(C)(1) sets forth

the following factors for a court to consider:

              (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;



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            (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 payment by the parties;

            (j) The contributions 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.



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       {¶ 11} In awarding appellee spousal support in this matter, the court first

concluded that appellant’s income was derived from her OPERS account and two

American Equity accounts and totaled $51,054.84. Appellee’s gross annual income

included withdrawals from an American Equity Account, Social Security, and his marital

share of appellant’s OPERS account and totaled $36,428.19. The court next concluded

that based on the parties’ ages and health status their earning abilities were “extremely

limited.”

       {¶ 12} As to the retirement benefits of the parties, the court noted that appellant

draws approximately $25,747.20 annually from her OPERS pension, which would be

reduced to $21,024.84 once appellee began receiving his marital share. The court further

stated that as to the American Equity accounts held by both parties, they were

withdrawing ten percent of the total value annually

       {¶ 13} Appellee had begun collecting Social Security benefits in November 2012.

Appellee was also a participant in his former employer’s employee stock ownership plan

(ESOP). The court rejected the parties’ stipulation that the value of the ESOP plan would

be divided equally between the parties. Instead, the court awarded the entire value of the

asset ($28,000) to appellee to offset spousal support arrears.

       {¶ 14} The court noted that the parties were married for 36 years and had enjoyed

a comfortable lifestyle. Appellant has a college degree and had worked as a social

worker. Appellee did not complete high school and had worked construction and general

labor. No children were born of the marriage. After the parties’ marriage they lived in



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various rental homes until moving in to appellant’s mother’s home which had been

vacant for approximately 12 years. Several improvements were made to the home and

property which, in addition to adjoining acreage, appellant inherited upon her mother’s

death. The parties lived there for nearly three decades until 2006, when they sold the

house and property for $650,000. With the proceeds, they purchased a home for

$315,000; the home is considered appellant’s separate property.

       {¶ 15} Appellee inherited $120,000 from his father; the money was put into a CD.

It was later put into a retirement program with the intent of using the money to help fund

the parties’ early retirement. These funds were depleted prior to the filing of the divorce.

       {¶ 16} Appellant first contends that the court erroneously considered funds that

she was already awarded as separate property, pursuant to the stipulations, in calculating

appellee’s spousal support award. Appellant then, conversely, asserts that if the court can

use separate property awarded to appellant as income, then appellee’s separate property

should have been treated similarly.

       {¶ 17} In determining whether a spousal support award is reasonable and

appropriate and in determining the nature, duration, amount, and the terms of payment of

any awarded spousal support, under R.C. 3105.18(C)(1)(a), a court is required to

consider: “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

[3105.17.1] of the Revised Code.” (Emphasis added.)

       {¶ 18} As quoted, the language of R.C. 3105.18(C)(1)(a) clearly and

unambiguously states that all sources of income, including property deemed to be

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separate property under R.C. 3105.171, is to be considered in deciding whether to award

spousal support and, if awarded, in deciding the nature, amount, duration, and terms of

payment of that award. Accord Crites, 6th Dist. Wood Nos. WD-04-034, WD-04-042,

2004-Ohio-6162 at ¶ 22. See also Johnson v. Johnson, 12th Dist. Warren No. CA99-01-

001, 1999 Ohio App. LEXIS 4596, *17-18 (Sept. 27, 1999); Donese v. Donese, 2d Dist.

Greene No. 97-CA-70, 1998 Ohio App. LEXIS 1493 (Apr. 10, 1998); Simmons v.

Simmons, 11th Dist. Trumbull No. 95-T-5237, 1996 Ohio App. LEXIS 1897 (May 10,

1996).

         {¶ 19} We further note that the cases relied upon by appellant are distinguishable.

First, income as defined in the spousal support statute, is not limited as to its sources or

characteristics unlike the definition of gross income used for child support

determinations. See Bradner v. Bradner, 12th Dist. Butler No. CA2011-07-136, 2012-

Ohio-3043; MacDonald v. MacDonald, 8th Dist. Cuyahoga No. 96099, 2011-Ohio-5389,

¶ 32. Again, the court may consider the income of the parties from all sources. Thus,

appellant’s reliance on Geiger v. Geiger, 96 Ohio App.3d 630, 645 N.E.2d 818 (10th

Dist.1994), which examined income as relating to an award of child support, is

misplaced.

         {¶ 20} Next, appellant raises a “double counting argument” to argue that the funds

already designated as separate property could not, in turn, be used to calculate appellant’s

income. Burkart v. Burkart, 173 Ohio App.3d 252, 2007-Ohio-3992 (10th Dist.). The

Burkart court arrived at its decision after finding that the evidence surrounding a $33,000

draw from the corporation awarded to appellant in the divorce was insufficient to

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characterize it as income. Id. at ¶ 23. The court acknowledged appellant’s assertion that

the sum was repayment from appellant’s loan to the corporation which he made from

selling an asset he was awarded at the time of the divorce. Id.

       {¶ 21} Appellant also cites Office v. Office, 2d Dist. Montgomery No. 15298, 1997

Ohio App. LEXIS 148 (Jan. 17, 1997), also relied upon in Burkart, which found error

where the court awarded half the interest in earned from promissory notes to the wife,

then counted the same interest as income attributed to husband. Id. at *25-27.

       {¶ 22} Finally, appellant cites Twelfth and Eighth Appellate District cases for the

proposition that only capital gains on separate property could be considered income for

purpose of awarding spousal support. Sheehy v. Sheehy, 12th Dist. Clermont No.

CA2010-01-007, 2010-Ohio-2967; Meister v. Meister, 8th Dist. Cuyahoga No. 77110,

2000 Ohio App. LEXIS 4751 (Oct. 12, 2000). In Sheehy, the court found that the trial

court did not err when it only considered the “potential investment income” from

appellant’s inheritance in reducing appellant’s spousal support obligation. Id. at ¶ 13.

The court made this determination based on the fact that much of the inheritance had

been spent on expenses relating to the investment. Id. at ¶ 14. In Meister, the assignment

of error dealt with child support and cited Geiger, supra.

       {¶ 23} Thus, the trial court did not err in considering appellant's withdrawals from

her investment accounts in resolving the question of spousal support in the instant case.

The definition of “income” as applied to spousal support awards is broad. The record

demonstrates that the parties contemplated supplementing their early retirements with

these funds.

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       {¶ 24} We also reject appellant’s argument that because the parties stipulated to

the division of appellant’s OPERS account, the court could not have considered

appellant’s portion as income in awarding spousal support. Ohio court have permitted

the consideration of pension income in determining spousal support where court had

already valued and divided the pension as a martial asset. See generally Gallo v. Gallo,

10th Dist. Franklin App. No. 14AP-179, 2015-Ohio-982.

       {¶ 25} As to appellant’s second assignment of error, a converse argument

involving appellee’s separate property, we find that the court did not fail to value and

examine appellee’s relevant property. The distribution of appellee’s ESOP account, as

discussed below, was done is order to achieve the most equitable resolution in the matter.

       {¶ 26} Appellant’s fifth assignment of error is that the court erred by failing to

impute minimum wage to appellee when calculating the spousal support award.

Appellant contends that the testimony presented at trial did not demonstrate that appellee

was incapable of working.

       {¶ 27} In determining spousal support, R.C. 3105.18(C) permits courts to inquire

into a party’s earning potential and to impute income when the court finds that he or she

is not working to full earning capacity. Kelly v. Forbis, 6th Dist. Wood No. WD-09-050,

2010-Ohio-3071, ¶ 39. The decision to impute income for spousal support and the

amount of the potential income to be imputed is within the discretion of the court. Id.

       {¶ 28} The magistrate’s October 28, 2016 decision noted:

              Husband’s earning ability (outside the current streams of unearned

       income) is extremely limited. Husband is sixty-two (62) years old and has

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       been out [of] the workforce for approximately five (5) years. Additionally,

       his health is below average, some of his medical conditions include but are

       not necessarily limited to—previous surgeries to repair back/spine issues as

       well as knee surgery. Husband’s entire working career has been spent in

       the construction/general labor field—his age and deteriorating health

       condition make it unlikely that he will be able to gain employment at the

       present time. Additionally, Husband lacks any additional skills sets to

       transition into another career field; he does not have a high school diploma

       and self-reported that he struggles with reading and writing.

       {¶ 29} Upon review of the record and the relevant testimony presented at trial, we

cannot find that the court abused its discretion by failing to impute income to appellee. It

is apparent that appellee’s physical and educational limitations would create a substantial

obstacle to finding employment.

       {¶ 30} Based on the foregoing, we find that the court did not abuse its discretion

when it calculated the parties’ incomes for purposes of awarding spousal support.

Appellant’s first, second, and fifth assignments of error are found not well-taken.

                             Spousal Support and Arrearages

       {¶ 31} In her third assignment of error, appellant argues that the trial court, when

awarding spousal support, erroneously ordered her to pay arrearages. Appellant first

contends that appellee never, in fact, requested that spousal support be awarded. Thus,

appellant argues that it logically follows that appellant should not have been ordered to

pay any spousal support and, especially, any arrearages on temporary spousal support.

12.
       {¶ 32} Appellant cites R.C. 3105.18(B) which states:

              In divorce and legal separation proceedings, upon the request of

       either party and after the court determines the division or disbursement of

       property under section 3105.171 of the Revised Code, the court of common

       pleas may award reasonable spousal support to either party. During the

       pendency of any divorce, or legal separation proceeding, the court may

       award reasonable temporary spousal support to either party.

       {¶ 33} Appellant further cites Civ.R. 75(N) which provides:

              (1) When requested in the complaint, answer, or counterclaim, or by

       motion served with the pleading, upon satisfactory proof by affidavit duly

       filed with the clerk of the court, the court or magistrate, without oral

       hearing and for good cause shown, may grant a temporary order regarding

       spousal support to either of the parties for the party's sustenance and

       expenses during the suit and may make a temporary order regarding the

       support, maintenance, and allocation of parental rights and responsibilities

       for the care of children of the marriage, whether natural or adopted, during

       the pendency of the action for divorce, annulment, or legal separation.

       {¶ 34} First, as to the request for spousal support R.C. 3105.18(B) does not

specify how such request is to be made. Early in the proceedings, appellant was aware

that appellee was seeking spousal support. In the June 11, 2012 stipulations of the

parties, the date chosen by the trial court as when the spousal support request was

“evident,” the parties agreed that “[t]he topic of spousal support remains unresolved and

13.
will be addressed either by way of further stipulation or by way of Court order

subsequent to the presentation of evidence.” Next, we note that appellee never requested

temporary spousal support so Civ.R. 75(N) is inapplicable.

       {¶ 35} Based on the parties’ stipulations, the court further rejected the magistrate’s

spousal support commencement date of March 2011. The court found that the June 11,

2012 date ensured that appellant was aware of the spousal support request; the court

determined that July 1, 2012, was an equitable start date. We note that “[a] trial court’s

selection of a commencement date for spousal support is subject to the abuse-of-

discretion standard of review.” Best v. Best, 10th Dist. Franklin No. 11AP-239, 2011-

Ohio-6668, ¶ 31, citing Muzechuk v. Muzechuk, 5th Dist. Tuscarawas No. 2001 AP

090089, 2002-Ohio-2527, ¶ 44. Further, a spousal support order may be made retroactive

to the date of the request. Rinaldi v. Rinaldi, 5th Dist. Stark No. 2009 CA 00200, 2010-

Ohio-3127, ¶ 48.

       {¶ 36} Reviewing the detailed and event-based tabulations, we cannot say that the

court erred in making the spousal support award retroactive to the next full month

following the request. We further note that the award did not find appellant in arrears in

the sense that no finding of contempt would be supported. Accordingly, we find

appellant’s third assignment of error not well-taken.

                                    The ESOP Account

       {¶ 37} Appellant’s fourth assignment of error contends that the court erred in

failing to award her the one-half share of appellee’s ESOP account in accordance with the

parties’ stipulations. Reviewing the decision, we note that the court used the funds to

14.
help offset the lump sum of retroactive spousal support awarded to appellee. We cannot

say that the court abused its discretion in applying the funds in this manner. Appellant’s

fourth assignment of error is not well-taken.

                                The Spousal Support Award

       {¶ 38} Appellant’s sixth and final assignment of error essentially argues, in

summation, that based on the numerous errors in the calculation of the parties’ incomes

including the addition of items already divided as separate property, amounts not credited

to appellee, the failure to impute income to appellee, and the improper retroactive

application of the award, the trial court erred in making its spousal support award. Based

on our disposition of appellant’s preceding five assignments of error, we find that

appellant’s sixth assignment of error is not well-taken and it is denied.

       {¶ 39} On consideration whereof, we find that substantial justice was done the

party complaining and the judgment of the Erie County Court of Common Pleas,

Domestic Relations Division, is affirmed. Pursuant to App.R. 24, appellant is ordered to

pay the costs of this appeal.

                                                                       Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Christine E. Mayle, P.J.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

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           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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