[Cite as Uphouse v. Uphouse, 2016-Ohio-95.]


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

ALBERT K. UPHOUSE                                     C.A. No.       27623

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DENISE R. UPHOUSE                                     COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   2012-03-0647

                                DECISION AND JOURNAL ENTRY

Dated: January 13, 2016



        CARR, Judge.

        {¶1}    Appellant Denise Uphouse appeals the judgment of the Summit County Court of

Common Pleas, Domestic Relations Division. This Court reverses and remands.

                                                 I.

        {¶2}    Albert Uphouse (“Husband”) and Denise Uphouse (“Wife”) were divorced after a

19-year marriage. Wife previously appealed from the domestic relations court’s decree of

divorce, arguing that the trial court failed to accurately recite the parties’ stipulations regarding

the disposition of the marital home and that it erred with regard to the spousal support order.

This Court sustained Wife’s assignment of error as to the trial court’s failure to dispose of the

marital home pursuant to the parties’ stipulations, but we declined to address the assignments of

error challenging the duration and amount of spousal support. Uphouse v. Uphouse, 9th Dist.

Summit No. 27057, 2014-Ohio-2514, ¶ 8-10 (recognizing that the domestic relations court must

fully dispose of marital property prior to awarding spousal support). Upon remand, the trial
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court issued an order disposing of the marital home. Wife has again appealed, raising three

assignments of error for review. This Court consolidates the assignments of error, as they

implicate similar issues.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THE
       DURATION OF THE SPOUSAL SUPPORT AWARD.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S FINDINGS OF THE HUSBAND’S EXPENSES WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT’S DETERMINATION OF THE AMOUNT OF
       REASONABLE AND APPROPRIATE SPOUSAL SUPPORT WAS AN
       ABUSE OF DISCRETION.

       {¶3}    Wife argues that the domestic relations court erred by limiting the duration and

amount of the spousal support award. This Court agrees.

       {¶4}    This Court reviews an award of spousal support for an abuse of discretion.

Daugherty v. Daugherty, 9th Dist. Wayne No. 12CA0003, 2013-Ohio-1934, ¶ 13. “‘A trial court

will be found to have abused its discretion when its decision is contrary to law, unreasonable, not

supported by evidence, or grossly unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330,

2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶

25.

       {¶5}    Although it enjoys wide latitude in awarding spousal support, the domestic

relations court is compelled to take guidance from R.C. 3105.18(C), which states:

       (1) In determining whether spousal support is appropriate and reasonable, and in
       determining the nature, amount, and terms of payment, and duration of spousal
                                                    3


       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;

       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[;]

       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).

       {¶6}    Wife first argues that the domestic relations court abused its discretion by

limiting the award of spousal support to sixty-two months. As this Court has recognized,
                                               4


       [t]he Supreme Court of Ohio has specifically provided certain factors to consider
       when determining the appropriate duration of spousal support in divorce cases.
       “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.”

Peters v. Peters, 9th Dist. Lorain Nos. 03CA008306, 03CA008307, 2004-Ohio-2517, ¶ 19,

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

decided at a time during which R.C. 3105.18 considered need as a factor in awarding spousal

support. The statute was subsequently amended to eschew a need-based approach, focusing

instead on reasonableness. Nevertheless, this Court continues to be guided by the considerations

listed in Kunkle when determining the reasonableness of the duration of a spousal support order.

See, e.g., Daugherty v. Daugherty, 2013-Ohio-1934, at ¶ 24-25.

       {¶7}   In this case, the parties were married for 19 years, reasonably a marriage of long

duration. See Peters at ¶ 20 (concluding that a 13-year marriage was of a “relatively long

duration”); Schieve v. Schieve, 9th Dist. Medina No. 05CA0037-M, 2005-Ohio-5190, ¶ 14, citing

Bowen v. Bowen, 132 Ohio App.3d 616, 627 (9th Dist.1999) (concluding that a 20-year marriage

was one of long duration). Although Wife was only 43 years old at the time of the divorce, she

had been diagnosed with lupus, a debilitating disease, in approximately 2007.          Husband

conceded that Wife spent a year in the hospital shortly after her initial diagnosis and that she

continues to have flare ups. Wife’s physician testified that, due to the severity of Wife’s

symptoms, including profound fatigue, joint pain, sensitivity to ultraviolet light, lupus “fog”

(cognitive impairment including memory loss and expressive aphasia), hearing loss in one ear,

systemic inflammation, and blood clotting issues, Wife would have great difficulty maintaining

employment of any type. Although Wife had three years of college education in the field of
                                                5


early childhood development, she ceased her education after she became ill. Early in their

marriage, Wife and Husband agreed that Wife would stop working outside the home when their

second child was born in June 1997, and she has not been employed outside the home since that

time. An attorney with over thirty years of experience representing the disabled before the

Social Security Administration testified that Wife does not qualify for disability or supplemental

security benefits because she has greater than the $2000 in assets allowed because of her $15,000

interest in Husband’s 401(K) account.

       {¶8}    The trial court gave no reason for ordering the termination of spousal support

after sixty-two months. Although it indicated that it considered Wife’s health problems and

noted her physician’s opinion that she cannot maintain employment, the trial court nevertheless

opined that Wife “should be able to complete her education within the [62-month] term of

spousal support * * *.”

       {¶9}    This Court concludes that the domestic relations court was unreasonable in

limiting the duration of spousal support in this case where the parties had a marriage of long

duration and where Wife had virtually no ability to become self-sustaining due to severe and

incurable health issues. The domestic relations court seemed to believe that Wife could obtain

self-sustaining employment after completing her college education. However, even assuming

that her medical condition would allow her to complete her final one-year requirements over the

course of five years, there was no evidence to dispute the medical expert’s testimony that Wife

would not be able to maintain any employment of any type due predominantly to her lupus-

induced fatigue and pain. Under these circumstances, this Court concludes that the domestic

relations court’s order limiting the payment of spousal support to Wife for a duration of only

sixty-two months was unreasonable. Wife’s first assignment of error is sustained.
                                                 6


       {¶10} Wife next argues that the domestic relations court abused its discretion in

determining the amount of spousal support because it erred in its findings related to Husband’s

expenses. A review of the record indicates that the trial court attributed a monthly expenses

amount of $2204.49 to Husband based on information in Husband’s Affidavit of Property

prepared several months before trial.      Based on the undisputed evidence adduced at trial,

however, many of the expenses attributed to Husband had been reduced, were scheduled to be

eliminated within a short period of time, or were unreasonable. Specifically, Husband claimed

monthly rent of $675, although he moved into an apartment leased by his girlfriend and her two

children at that rate. Husband executed a lease solely in his name despite the fact that his

girlfriend and her two children continued to live there with him. Attributing the entire amount of

monthly rent to Husband under those circumstances was unreasonable. Husband also claimed

child support in the amount ordered for two children, although the undisputed testimony was that

the parties’ son had already emancipated and child support for that child had terminated. In

addition, Husband testified at trial that the almost $95 he claimed he paid for automobile

insurance had been reduced to $40 a month. Finally, his $129.20 401(K) loan repayment would

end within six months after the divorce trial. Taking into consideration Husband’s concessions

at trial that some of his claimed monthly expenses had been reduced or would soon be

eliminated, coupled with his assumption of rent for his girlfriend and her children, the trial court

was unreasonable in basing the amount of spousal support on Husband’s claimed monthly

expenses in the amount of $2204.49. Accordingly, Wife’s second and third assignments of error

are sustained.
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                                                III.

       {¶11} Wife’s assignments of error are sustained. The judgment of the Summit County

Court of Common Pleas, Domestic Relations Division, is reversed and the cause remanded for

further proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             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 Summit, 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.

       Costs taxed to Appellee.




                                                       DONNA J. CARR
                                                       FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.
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APPEARANCES:

SHARYL W. GINTHER and KENNETH L. GIBSON, Attorneys at Law, for Appellant.

ALBERT K. UPHOUSE, pro so, Appellee.
