[Cite as Daugherty v. Daugherty, 2013-Ohio-1934.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

NANCY K. DAUGHERTY                                       C.A. No.   12CA0003

        Appellant

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
RONALD G. DAUGHERTY                                      COURT OF COMMON PLEAS
                                                         COUNTY OF WAYNE, OHIO
        Appellee                                         CASE No.   09-DR-0365

                                DECISION AND JOURNAL ENTRY

Dated: May 13, 2013



        CARR, Judge.

        {¶1}    Appellant Nancy Daugherty appeals the judgment of the Wayne County Court of

Common Pleas, Domestic Relations Division. This Court affirms in part, reverses in part, and

remands.

                                                    I.

        {¶2}    After sixteen years of marriage, Nancy Daugherty (“Wife”) filed a complaint for

divorce against Ronald Daugherty (“Husband”). Husband answered and counterclaimed for

divorce. Husband filed a motion for temporary orders, specifically requesting that the trial court

enjoin the parties from allowing third parties to reside in the marital home during the pendency

of the divorce proceedings. The magistrate heard Husband’s motion and issued a decision and

order two days later, granting Husband’s motion and issuing an order restraining both parties

from allowing others to reside in the marital home without the permission of the other spouse.
                                                2


       {¶3}    Almost a month later, Wife’s attorney moved to withdraw from further

representation of Wife based on her discharge of him. The trial court granted counsel permission

to withdraw. One week later, Husband filed a motion to enforce an agreement that the parties

had allegedly made regarding the issues raised in Husband’s motion for temporary orders.

Husband argued that the parties had reached an agreement subsequent to the hearing and that

they had not had time to inform the court before the magistrate issued his decision. Husband

asserted that the parties intended for their agreement to replace the magistrate’s order, but that

Wife discharged her attorney before he was able to execute the agreement on her behalf.

Husband submitted the purported “Consent Magistrate’s Order” to the court. The order stated

that it would replace the magistrate’s prior decision and order and characterized the orders within

as “temporary orders.” The temporary orders included that Wife would have exclusive use of the

marital home until February 1, 2010, at which time Wife’s son must vacate the premises and

both Husband and Wife would again have full access to, use, and occupancy of the home. Wife

would be required to make all payments associated with the home during her period of exclusive

use. Finally, “[Wife] will make no claim to any part of [Husband’s] inheritance, and no claim to

any appreciation, active or passive, with respect to any separate property interest which

[Husband] has.” Neither attorney had noted his approval by signing the order under the

“Approved” heading. The magistrate scheduled the matter for hearing.

       {¶4}    The magistrate issued a “decision and order” and ordered Husband’s attorney to

submit a consent magistrate’s order consistent with the terms of the agreement as represented by

Husband. Wife moved to set aside the order. Nevertheless, without waiting for the trial court to

rule on the motion to set aside, the magistrate signed the order that reflected the “temporary

orders” as enunciated above, including the provision that Wife would make no claim to
                                                 3


Husband’s inheritance or appreciation in any separate property. Six months later, after the trial

court had still not ruled on Wife’s pending motion to set aside, Husband moved the court for a

ruling. The next day, the trial court summarily denied Wife’s motion to set aside without any

analysis and ordered that it was adhering to its decision dated December 15, 2009. Although the

magistrate issued his decision and order on December 15, 2009, there is no decision by the judge

filed on that day, so there was no prior decision by the court to which it could adhere.

       {¶5}    On August 18, 2010, the matter proceeded to trial before the magistrate on the

parties’ divorce action. The parties agreed that they had resolved all issues except the issue of

spousal support. The parties’ agreement regarding the division of property was read into the

record. Subsequently, the parties filed a stipulated agreement, approved by signature of the

attorneys for both Husband and Wife. The agreement stated that the parties had reached an

agreement on all issues relevant to their divorce except spousal support. The agreement further

delineated the terms of their agreement regarding the division of all property. The magistrate

issued a decision in which he found that spousal support was appropriate and recommended that

Husband pay Wife $300.00 per month for a period of 24 months. The trial court issued a

judgment decree of divorce the same day, reflecting the magistrate’s recommendations.

       {¶6}    Wife filed timely objections, challenging the award of spousal support. Husband

filed a brief in opposition. The trial court overruled Wife’s objections without analysis and

ordered that it adhered to it prior judgment decree of divorce. Wife appealed and raises two

assignments of error for review.
                                                4


                                                II.

                                 ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED BY GRANTING [HUSBAND’S] REQUEST TO
         ENFORCE THE CONSENT AGREEMENT THAT [WIFE] NEITHER
         AGREED TO NOR RATIFIED.

         {¶7}   Wife argues that the trial court erred by granting Husband’s motion to enforce the

temporary orders reflected in the consent agreement submitted by Husband and adopted by the

trial court during the pendency of the action. This Court disagrees.

         {¶8}   The crux of Wife’s argument is that the parties had not reached an agreement

regarding the allocation of certain real property in which Husband had an interest. She argues

that, accordingly, the trial court erred by enforcing the parties’ alleged consent agreement to

temporary orders regarding such property while the divorce action was pending.

         {¶9}   Wife subsequently appeared for trial on the parties’ competing complaints for

divorce, at which time both parties asserted on the record that they had reached an agreement as

to all issues except for the issue of spousal support. Husband’s attorney read the parties’

agreement regarding the division of property into the record.          Wife’s attorney agreed that

opposing counsel accurately enunciated the terms of the parties’ agreement. In addition, both

Husband and Wife agreed that the terms were accurately presented to the court. Specifically,

upon direct examination by her attorney, Wife confirmed that the parties had reached an

agreement regarding all financial aspects of the case with the exception of spousal support,

asserted that she believed the agreement was fair and equitable, and she requested that the trial

court adopt the parties’ agreement as part of the judgment decree of divorce. The “Stipulated

Agreement” was subsequently reduced to writing, signed by both attorneys, and filed with the

court.
                                                 5


       {¶10} Courts have recognized that a party has not preserved an issue for appeal when

she has entered into a stipulation or agreement regarding the issue before the trial court. See,

e.g., Presjak v. Presjak, 11th Dist. No. 2009 T 0077, 2010-Ohio-1455, ¶ 40. In fact, unless the

party has explicitly reserved the right to challenge the issue on appeal, a consent decree or other

stipulation or agreement before the trial court operates as a waiver of the right to raise the issue

on appeal. Miller v. Miller, 3d Dist. No. 9 03 38, 2004-Ohio-923, ¶ 11.

       {¶11} The parties jointly asserted at the divorce hearing that they had reached an

agreement regarding all financial matters with the exception of spousal support. Their agreement

regarding the division of property was read into the record and subsequently submitted in writing

to the court. Both attorneys noted their approval in writing. Wife expressly stated on the record

that the agreement was fair and equitable. The parties’ agreement resolved all issues regarding

the property division including all issues addressed in the prior consent agreement that Wife now

attempts to challenge. Because the parties settled all matters regarding the division of property,

neither presented any evidence on the issue. Nor did Wife qualify at trial that the parties’

settlement excluded the property that was the subject of the disputed consent agreement. Wife’s

agreement at trial constituted a waiver of her right to now raise any issues regarding the

allocation of property. The first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       IN LIGHT OF THE FACTORS CONTAINED IN [R.C.] 3105.18, THE TRIAL
       COURT ERRED IN ITS DECISION THAT [HUSBAND] PAY SPOUSAL
       SUPPORT FOR A LIMITED PERIOD OF TWENTY-FOUR MONTHS. THE
       TRIAL COURT ALSO ERRED IN FINDING THAT IT WAS REASONABLE
       AND APPROPRIATE FOR [HUSBAND] TO ONLY PAY $300.00 PER
       MONTH TO [WIFE] AS HIS SPOUSAL SUPPORT OBLIGATION.

       {¶12} Wife argues that the trial court erred in its determination regarding spousal

support. This Court agrees.
                                                 6


       {¶13} The appellate court reviews the trial court’s award of spousal support for an abuse

of discretion. An abuse of discretion is more than an error of judgment; it means that the trial

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not

substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d

619, 621 (1993). Moreover, “[t]he burden is on the party challenging the award to show that the

award is unreasonable, arbitrary, or unconscionable in order for this Court to overturn the

award.” Gregory v. Gregory, 9th Dist. No. 98CA0046, 2000 WL 877823 (July 6, 2000).

       {¶14} While a trial court has wide latitude in awarding spousal support, it must do so in

consideration of the fourteen factors enunciated in R.C. 3105.18(C)(1). Those factors include:

           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;

           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[;]
                                               7


           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.” R.C. 3105.18(C)(1).

       {¶15} Wife sought spousal support in the amount of $1500 per month for eight years.

Husband did not think he should have to pay Wife anything in the way of spousal support. The

trial court awarded Wife $300 per month for twenty-four months. This Court concludes that the

amount and duration of the spousal support award to Wife was unreasonable based on a

consideration of the statutory factors.

       {¶16} The trial court recognized the great disparity between Husband’s and Wife’s

incomes although it apparently did not find the disparity very significant. Based on the parties’

2009 tax returns, in which each party filed married and separately, Husband’s adjusted gross

income was $69,403, while Wife’s was $19,825. Husband earned $12,429 as a bus driver for

Triway schools. His income included investment interest of $13,660, which the parties agreed

would no longer continue because the investment company had filed for bankruptcy. It also

included $20,827 from his retirement account. After the divorce, Wife would receive 50% of

5/33 of Husband’s retirement, or approximately $1578 per year, leaving an annual retirement

account income of $19,249 for Husband. Husband’s income included $6481 from farm rental

income, and Husband admitted that he was inheriting a second farm from which he expected to

receive an additional $4500 per year in rental income.        Wife earned $7234 through her

employment at Triway schools and $3400 from mowing her mother’s grass. She had earlier
                                                8


earned approximately $28,000 per year before Husband decided to move the couple to Georgia

to be close to his family. Upon their return three years later, Wife was unable to find work at her

prior salary. After the divorce, she would also receive approximately $1578 per year from

Husband’s retirement account. Both parties also receive social security benefits. Without

considering social security benefits, and assuming both parties maintained their current

employment, Husband’s anticipated future income from all sources would be approximately

$60,200 per year, while Wife’s anticipated future income from all sources would be

approximately $21,400 per year. R.C. 3105.18(C)(1)(a)/(d)/(m).

       {¶17} Husband is in good health, while Wife’s health is fair. Wife had rotator cuff

surgery which physically limited her ability to lift objects. In addition, Wife lost the vision in

one eye. She testified that her employer could not likely offer her more than the 17 ½ hours per

week that she was already working, nor did she believe she would be capable of working

additional hours. Both parties were 64 years old at the time of the hearing. Husband did not

want to work beyond the age of 66, although he did not testify that he was unable to do so.

Neither party intended to obtain additional education or training in an effort to obtain additional

employment.       There was no testimony regarding the parties’ education.                    R.C.

3105.18(C)(1)(b)/(c)/(h)/(j)(k).

       {¶18} The parties were married for seventeen years and had no children together. They

enjoyed a modest standard of living while married. R.C. 3105.18(C)(1)(e)/(f)/(g).

       {¶19} Husband owned a home with no mortgage prior to the parties’ marriage. That

home became the marital home. Wife sold the home she owned prior to marriage. Husband

inherited his mother’s home, two farms, and significant assets from his mother’s and an uncle’s

estate. Wife moved into her mother’s home when the parties separated. Her mother was elderly
                                                9


and ill. Although she might stand to inherit some assets from her mother, she has four siblings

who likely would also inherit a portion of their mother’s estate. R.C. 3105.18(C)(1)(i).

       {¶20} Both parties presented monthly budgets to the court. Husband estimated his

monthly income to be $4089, which did not include the anticipated additional farm rental

income. He estimated his monthly expenses to be $3525, which included $300 for groceries,

$480 for eating out, and $50 for coffee and snacks. He also included a monthly expense ($200)

for a vehicle replacement fund so that he would be able to either fully fund or make a significant

down payment on a new vehicle. Husband continued to live mortgage-free in his home. He

would assume some additional tax liabilities when the second farm he was inheriting cleared

probate. R.C. 3105.18(C)(1)(i)/(l).

       {¶21} Wife estimated her monthly expenses to be $2812, which included an anticipated

rent payment of $700. She was then paying her mother’s guardian $50 per month to live in her

mother’s home, but she expected that the guardian would soon sell the home and she would be

forced to find alternate living quarters. Based on her research, she testified that she would be

lucky to find an apartment for rent for less than $700 per month. Wife did not include a vehicle

payment expense in her monthly budget, although she testified that she needed a new vehicle.

She testified that she was currently borrowing a car because her car was no longer functional.

R.C. 3105.18(C)(1)(i).

       {¶22} Husband argued that he would have to pay Wife every penny he earned from

employment and supplement that amount with an additional $8000 per year to be able to pay

Wife $1500 per month as she requested. He further asserted that it would be unfair to force him

to work until the age of 72 in order to pay such a spousal support obligation. The evidence

demonstrated that Husband had income and other assets which far exceeded Wife’s. He was also
                                                10


in better health than Wife. Moreover, Wife testified that Husband, without her knowledge or

consent, made the decision to invest a large sum of the parties’ money in a company that went

bankrupt. While it is not reasonable to believe that Husband should have known that the

managers of the investment company would prove to be unscrupulous, the loss of the yearly

investment interest also had a negative effect on Wife, not only Husband who claimed the

interest on his tax return. R.C. 3105.18(C)(1)(n).

       {¶23} After careful consideration of the record and the law relevant to the case, this

Court concludes that the amount of spousal support awarded by the trial court to Wife is

unreasonable in light of the facts. Although the court need not consider need in its determination

of spousal support, in this case, the trial court maintained a large disparity in the standards of

living of the parties when it crafted its award. It gave no reasoning for its award. Instead, the

amount appeared arbitrary, with no discernible basis.

       {¶24} The duration of the award was also unreasonable.

       “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.”

Farnsworth v. Farnsworth, 9th Dist. No. 02CA0074-M, 2003-Ohio-2341, ¶ 12, quoting Kunkle

v. Kunkle, 51 Ohio St.3d 64 (1990), paragraph one of the syllabus.

       {¶25} Here, the trial court provided for the termination of the award but did not do so

within a reasonable time. The parties were married for seventeen years. Wife is of an advanced

age and has little opportunity to develop meaningful employment outside the home. On the other

hand, Husband, has significantly greater resources and the ability to be self-supporting. Under
                                                11


these circumstances, an award of spousal support to Wife for a mere 24 months was

unreasonable.

       {¶26} Wife’s second assignment of error is sustained.

                                                III.

       {¶27} Wife’s first assignment of error is overruled. The second assignment of error is

sustained. The judgment of the Wayne County Court of Common Pleas, Domestic Relations

Division, is affirmed in part, reversed in part, and the cause remanded for further proceedings

consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                             12


      Costs taxed equally to both parties.




                                                  DONNA J. CARR
                                                  FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

ROSANNE K SHRINER, Attorney at Law, for Appellant.

LON R. VINION, Attorney at Law, for Appellee.
