[Cite as Rodriguez v. Rodriguez, 2013-Ohio-5663.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MERCER COUNTY




TERESA L. RODRIGUEZ,

        PLAINTIFF-APPELLANT,                             CASE NO. 10-13-15

        v.

JACOB I. RODRIGUEZ,                                      OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Mercer County Common Pleas Court
                           Domestic Relations Division
                           Trial Court No. 12-DIV-024

                                     Judgment Affirmed

                         Date of Decision: December 23, 2013




APPEARANCES:

        William E. Huber for Appellant

        Thomas Luth for Appellee
Case No. 10-13-15



PRESTON, P.J.

       {¶1} Plaintiff-appellant, Teresa L. Rodriguez (“Teresa”), appeals the

judgment of the Mercer County Court of Common Pleas, Domestic Relations

Division granting her complaint for a divorce from her husband, defendant-

appellee, Jacob I. Rodriguez (“Jacob”), but failing to grant her spousal support.

We affirm.

       {¶2} Teresa and Jacob were married on May 24, 1974. (Doc. No. 3); (Dec.

17, 2012 Tr. at 6). Three children were born as issue of the marriage. (Dec. 17,

2012 Tr. at 7).

       {¶3} On June 26, 2012, Teresa filed a complaint for divorce, alleging that

Jacob was guilty of gross neglect of duty and extreme cruelty. (Doc. No. 3). The

parties’ three children were emancipated by the time Teresa filed for divorce.

(Dec. 17, 2012 Tr. at 7).

       {¶4} On July 18, 2012, Jacob answered, denying gross neglect of duty and

extreme cruelty but admitting incompatibility and asking the trial court to grant

Teresa a divorce on that ground. (Doc. No. 12).

       {¶5} On December 17, 2012, the matter proceeded to final hearing before a

magistrate. (See Doc. No. 23). Following the hearing, the parties submitted

written closing arguments. (Doc. Nos. 27-30).



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        {¶6} On February 5, 2013, the magistrate issued a decision recommending

that the trial court grant the parties a divorce based on incompatibility; restore

Teresa to her maiden name of Bonifas; equally divide any obligation on the

parties’ home following foreclosure proceedings; award Teresa the 2010 Dodge

Caliber but require Jacob to continue making payments on the vehicle; award

Jacob the 2008 Dodge Caravan and the payments; equally divide Jacob’s 401(K)

plans via a qualified domestic relations orders (“QDRO”); and, grant no spousal

support to either party. (Doc. No. 32).

        {¶7} Following an extension by the trial court for the preparation of the

final hearing transcript, on April 30, 2013, Teresa filed objections to the

magistrate’s decision. (Doc. No. 38). Relevant to this appeal, Teresa argued in her

second objection that the magistrate erred by recommending that the trial court not

award spousal support. (Id.). Teresa argued that, during the pendency of the case,

Jacob was paying $250 per week1 in spousal support; Jacob earned two to two and

one-half times the amount she earned; the magistrate inappropriately relied on her

failure to seek employment; the magistrate’s decision was based on speculation

concerning Jacob’s future health and inability to work; the magistrate failed to

account for Teresa’s health insurance expenses of $400 to $800 per month; and,

1
  Later in her objections, Teresa argues that Jacob has demonstrated his ability to pay $250 per month in
spousal support. (Doc. No. 38). There was no temporary spousal support ordered in this case. During the
hearing, Teresa testified that, during the first four months after Jacob asked her for a divorce (February
through May 2012), Jacob transferred $250 per week from his paycheck into her checking account to “help
[her] through this” and to “be fair.” (Dec. 17, 2012 Tr. at 29, 96).

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the magistrate erred by substituting the amount Teresa received from Jacob’s

401(K) for spousal support when Teresa cannot currently withdraw the funds

while Jacob continues to work. (Id.).

      {¶8} On July 9, 2013, the trial court filed an entry overruling Teresa’s

objections. (Doc. No. 41). Concerning spousal support, the trial court found that

the magistrate’s findings were consistent with the evidence and consistent with the

factors in R.C. 3105.18. (Id.). The trial court also noted that the magistrate’s

recommendation not to award spousal support was reasonable in light of her

recommendation that Jacob continue to make the payments on the 2010 Dodge

Caliber she recommended the trial court award to Teresa, which “in effect is a

form of lump sum spousal support.” (Id.).

      {¶9} On July 22, 2013, the trial court filed its final judgment entry of

divorce. (Doc. No. 43).

      {¶10} On August 13, 2013, Teresa filed a notice of appeal. (Doc. No. 48).

She raises two assignments of error for our review.

                           Assignment of Error No. I

      The trial court abused its discretion and was arbitrary in
      denying Plaintiff-Appellant spousal support.

      {¶11} In her first assignment of error, Teresa argues that the trial court

abused its discretion by failing to award her spousal support. In particular, Teresa

argues that she earns only $10.50 per hour and works 32 to 40 hours per week,

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while Jacob earns $20.25 per hour and works 40 hours per week, plus overtime,

and additionally earns $3,000 per year from his DJ business. Teresa argues that

the trial court incorrectly found that she had business income when she had

already sold her business. She also argues that the magistrate inappropriately

relied on speculation concerning Jacob’s poor health and its effect on his future

ability to work, which she says was not supported by the evidence. She further

argues that the magistrate failed to account for her extra expense of medical

insurance, which would cost her $400 to $800 per month. Finally, she points to

several cases that affirm the trial court’s ability to order life-long spousal support

in long-term marriages like hers.

       {¶12} Spousal support is defined as “any payment or payments * * * that is

both for sustenance and for support of the spouse or former spouse.”             R.C.

3105.18(A). Trial courts have broad discretion concerning an award of spousal

support, and therefore, a trial court’s decision will not be reversed absent an abuse

of discretion. Tremaine v. Tremaine, 111 Ohio App.3d 703, 706 (2d Dist.1996);

Siekfer v. Siekfer, 3d Dist. Putnam No. 12-06-04, 2006-Ohio-5154, ¶ 15; Kunkle v.

Kunkle, 51 Ohio St.3d 64, 67 (1990). Although a trial court has broad discretion

in fashioning an equitable spousal support award based on the facts and

circumstances of each case, this discretion is not unlimited. Kunkle at 67; Cherry

v. Cherry, 66 Ohio St.2d 348, 355 (1981). In reviewing a spousal support award,


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an appellate court must “look at the totality of the circumstances and determine

whether the trial court acted unreasonably, arbitrarily or unconscionably.” Kunkle

at 67.

         {¶13} R.C. 3105.18 governs spousal support and provides, in pertinent part,

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 * * *;

         (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;



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       (j) The contribution of each party to the education, training, or
       earning ability of the other party, including, but not limited to, any
       party’s contribution to the acquisition of a professional degree of the
       other party;

       (k) The time and expense necessary for the spouse who is seeking
       spousal support to acquire education, training, or job experience so
       that the spouse will be qualified to obtain appropriate employment,
       provided the education, training, or job experience, and employment
       is, in fact, sought;

       (l) The tax consequences, for each party, of an award of spousal
       support;

       (m) The lost income production capacity of either party that
       resulted from that party’s marital responsibilities;

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

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

       {¶14} The magistrate filed a nine-page decision analyzing the R.C.

3105.18(C)(1) factors above and concluding that spousal support was not

appropriate in this case. (Feb. 5, 2013 Decision, Doc. No. 32). The magistrate

found that the parties did not live a lavish lifestyle while married despite Teresa’s

representations otherwise. (Id.). The magistrate also found that Jacob was 58

years old and had serious health problems, including diabetes, two strokes, several

surgeries, neuropathy, and pain in his lower legs and feet. (Id.). The magistrate

recommended that Teresa be awarded the 2010 Dodge Caliber and that Jacob

continue to make monthly payments on the vehicle. (Id.). At the time of the final


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hearing, Jacob owed $12,405.67 on the Dodge Caliber, which required an

additional 49 monthly payments of $278.39. (D’s Ex. E). (See also Dec. 17, 2012

Tr. at 70). The value of the Dodge Caliber at the time of the hearing was $9,652

(very good condition). (D’s Ex. D); (Feb. 5, 2013 Decision, Doc. No. 32); (Dec.

17, 2012 Tr. at 101). The magistrate also recommended that Jacob’s two pensions

be divided equally between Jacob and Teresa, which would entitle Teresa to

$381.78 per month when Jacob retired. (Feb. 5, 2013 Decision, Doc. No. 32).

Finally, the magistrate recommended that Teresa be awarded $16,576.55 of

Jacob’s retirement savings plan minus one half of the outstanding loan balance on

that account. (Id.).

       {¶15} Teresa objected to the magistrate’s decision that failed to recommend

awarding her spousal support, but the trial court overruled the objection,

concluding that the magistrate’s recommendation that Jacob continue to make

monthly payments on the Dodge Caliber for Teresa was the functional equivalent

of a lump sum of spousal support. (July 9, 2013 Decision, Doc. No. 41).

       {¶16} On appeal, Teresa first argues that Jacob was financially able to

provide her spousal support because he was paying her $250 per week prior to the

final divorce hearing. The record demonstrates that, after the parties separated in

February 2012, Jacob gave Teresa $250 per week until the beginning of June

2012. (Dec. 17, 2012 Tr. at 29, 71). These payments were not court-ordered


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payments but payments Jacob made to help Teresa get through the divorce and to

“be fair.”   (Id. at 29).   Jacob testified, however, that he quit making these

payments to Teresa in the beginning of June 2012, because he could not afford to

give Teresa that much money and also make payments on the Dodge Caliber and

purchase a four-year-old vehicle for himself after the transmission failed in his old

vehicle. (Id. at 71, 126-127).

       {¶17} The magistrate found that the parties were living paycheck-to-

paycheck and barely getting by. (Feb. 5, 2013 Decision, Doc. No. 32). While the

parties’ combined, adjusted gross income for 2007 exceeded $55,000, but after

2007, their combined, adjusted gross income continued to decrease until it reached

a low of $21,876 in 2011. (P’s Exs. 4-9). Their financial difficulty ultimately led

to the bank foreclosing on the parties’ home.         (Dec. 17, 2012 Tr. at 8-9).

Therefore, contrary to Teresa’s arguments on appeal, the record does not

demonstrate that Jacob could have continued paying her $250 per week in spousal

support and provide for his own needs at the same time.

       {¶18} Teresa also argues that the magistrate erroneously found that she had

additional business income when the testimony clearly showed that she no longer

owned her business. We disagree. Teresa testified at the hearing that she owned

an antique shop for two-and-one-half years, but she closed the business in July

2010 because it was losing money. (Dec. 17, 2012 Tr. at 15-16). In her decision,


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the magistrate found that “Teresa presently has no other sources of income. She

previously earned income from self-employment from a retail business as a sole

proprietor.” (Feb. 5, 2013 Decision, Doc. No. 32) (emphasis added). Therefore,

the record does not support Teresa’s argument that the magistrate erred by

factoring in her business income for purposes of its spousal support determination.

       {¶19} Teresa further argues that the trial court failed to consider the $400 to

$800 per month she would have to pay for health insurance for purposes of

spousal support. Teresa testified that she would lose her health insurance as a

result of the divorce. (Id. at 21). She also testified that, with her husband’s

insurance, she pays around $200 per month for physicians and prescription drugs.

(Id. at 27). Teresa further testified that she needs new prescription eye glasses and

some dental work, too, but she does not have the money to pay for these things.

(Id. at 27-28). Teresa testified that health insurance would cost her $783.13 per

month with a $500 deductible or $270 per month with a $1,000 deductible. (Id. at

43-44); (P’s Ex. 10). Teresa testified she would have to pay $24.50 extra per

month for a $500-deductible dental plan. (Id. at 44-45); (P’s Ex. 10). Teresa

testified that she can obtain health insurance through her employer, but she was

not sure how much it would cost. (Id. at 47). Teresa testified that she could not

afford to pay for medical insurance, which was why she was asking for $250 per

week in spousal support. (Id. at 48-50, 56-58). Teresa was seeking nine years of


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spousal support so that she would be supported until she was eligible for Medicare

and Social Security. (Id. at 50-51, 58). In light of the extensive testimony on the

issue of Teresa’s medical insurance expense at the final hearing, we are not

persuaded that the trial court failed to consider this issue.2

        {¶20} Finally, Teresa argues, by merely citing portions of several cases,

that the trial court erred by failing to award her spousal support in light of her

long-term marriage of 38 years. We disagree. The fact that the parties had a long-

term marriage is one of several factors the trial court was required to consider

under R.C. 3105.18(C)(1). Kaechele v. Kaechele, 35 Ohio St.3d 93, 96 (1988)

(trial court must consider all of the factors in R.C. 3105.18 when determining

amount and duration of spousal support). In this case, the trial court determined

that ordering Jacob to make the 49 remaining monthly payments on Teresa’s

vehicle was the functional equivalent of spousal support. (July 9, 2013 Decision,

Doc. No. 41). While this Court may have ordered spousal support for a longer

duration here in light of the parties’ 38-year marriage—that is not the appropriate

measuring stick for whether the trial court abused its discretion. Kunkle, 51 Ohio

St.3d at 67 (appellate court may not simply substitute its judgment for that of the

trial court’s).

2
  We also note that the General Information Worksheet for the spousal support calculation (P’s Ex. 12)
listed $500 per year for Teresa’s health insurance and $2,400 per year for Teresa’s physician and
prescription expenses. The figures Teresa testified to at the hearing regarding health insurance were not
provided to the court for purposes of this worksheet. In light of Teresa’s income level, Teresa may be
eligible for subsidized health insurance under the Affordable Care Act.

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      {¶21} Upon review of the record, we cannot find that the trial court abused

its discretion by failing to award Teresa spousal support. At the time of the final

hearing, Jacob was 58 years old and planned to retire at 62, which would be

approximately four years away—approximately the same amount of time for the

remaining payments on the 2010 Dodge Caliber, which the trial court awarded to

Teresa with Jacob making the payments. (Dec. 17, 2012 Tr. at 106); (D’s Ex. E).

The debt Jacob owed on the Dodge Caliber awarded to Teresa exceeded its market

value by $2,753.67, and the debt Jacob owed on the Dodge Grand Caravan

awarded to him exceeded its market value by $2,727.56.           (D’s Exs. A-F).

Consequently, the trial court’s award of the vehicles appears to be more than a

mere property settlement.

      {¶22} Teresa is currently employed earning $10.50 per hour and has the

opportunity to obtain health insurance through her employment. However, Teresa

has been afforded opportunities in the past for management positions, earning a

higher wage than she presently earns.         Teresa may be able to obtain better

employment in the future that would provide her with health care coverage based

upon her extensive work history and experience. Jacob has extremely poor health,

on the other hand, which has negatively affected his ability to work and may force

him into early retirement.     The parties’ tax returns and financial records

demonstrate not an exorbitant lifestyle but a paycheck-to-paycheck lifestyle for


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many years during the marriage. Jacob testified that he could not afford spousal

support in light of his own financial obligations and paying for Teresa’s vehicle.

After Jacob’s retirement, Teresa will receive $381.78 per month from pensions

Jacob earned during the marriage, plus $16,575.55 (minus half of the outstanding

loan balance on this retirement account) from a retirement savings account Jacob

earned. At that point in time, Teresa will be approximately 60 years old and could

be eligible for Social Security within about two years.       Given the facts and

circumstances of this case and the trial court’s thorough analysis of the R.C.

3105.18(C)(1) factors, we cannot conclude that it abused its discretion by failing

to award Teresa spousal support.

      {¶23} Teresa’s first assignment of error is, therefore, overruled.

                           Assignment of Error No. II

      The trial court failed to conduct an independent review as to the
      issues raised in the Plaintiff-Appellant’s objections to the
      Magistrate’s decision concerning spousal support.

      {¶24} In her second assignment of error, Teresa argues that the trial court

failed to conduct an independent review of the objected matters. Teresa argues

that the trial court merely stated that the magistrate reviewed the factors and the

evidence was consistent with the facts found by the magistrate. Teresa further

argues that the trial court attempted to justify the magistrate’s decision by

transforming a property award into a quasi-spousal support award.


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       {¶25} When objections are filed, the trial court must independently review

the objected matters to decide if the magistrate properly determined the factual

issues and appropriately applied the law. Civ.R. 53(D)(4)(d); Gilleo v. Gilleo, 3d

Dist. Mercer No. 10-10-07, 2010-Ohio-5191, ¶ 46 (citations omitted);

Mackenbach v. Mackenbach, 3d Dist. Hardin No. 6-11-03, 2012-Ohio-311, ¶ 9.

While a trial court is required to independently review the record and make its

own factual determinations, the trial court may rely upon the magistrate’s

credibility determinations. Hendricks v. Hendricks, 3d Dist. Van Wert No. 15-08-

08, 2008-Ohio-6754, ¶ 25, citing Osting v. Osting, 3d Dist. Allen No. 1-03-88,

2004-Ohio-4159.

       {¶26} An appellate court generally presumes regularity in the proceedings

below; and, therefore, that the trial court conducted an independent analysis in

reviewing the magistrate’s decision.      Gilleo at ¶ 46, quoting Mahlerwein v.

Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, ¶ 47 (4th Dist.).

Consequently, the party asserting that the trial court failed to conduct an

independent review bears the burden of affirmatively demonstrating the trial

court’s failure to perform its duty. Id.; Figel v. Figel, 3d Dist. No. Mercer No. 10-

08-14, 2009-Ohio-1659, ¶ 10. When the trial court states that it conducted an

independent review, we must presume that the trial court did exactly that. Figel at




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¶ 11, citing Betz v. Timken Mercy Med. Ctr., 96 Ohio App.3d 211, 216 (5th

Dist.1994).

        {¶27} In this case, the trial court stated that the magistrate’s findings were

supported by the evidence in this case, indicating that the trial court reviewed the

record before ruling on the objections. (Feb. 9, 2013 Decision, Doc. No. 41).

Teresa has failed to affirmatively demonstrate that the trial court failed to

independently review the record in this case. The fact that the trial court justified

the magistrate’s recommendation not to award Teresa spousal support in light of

the magistrate’s recommendation that Jacob make payments on the Dodge Caliber

in Teresa’s possession only highlights the trial court’s independent review in this

case.

        {¶28} Teresa’s second assignment of error is, therefore, overruled.

        {¶29} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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