[Cite as Scales v. Scales, 2009-Ohio-6865.]




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



DAVID L. SCALES,

   PLAINTIFF-APPELLANT,
   CROSS-APPELLEE,                                    CASE NO. 8-09-11

  v.

DESTINIE M. SCALES,                                       OPINION

   DEFENDANT-APPELLEE,
   CROSS-APPELLANT.



                  Appeal from Logan County Common Pleas Court
                                   Family Court
                           Trial Court No. DR07-10-0206

                                      Judgment Affirmed

                           Date of Decision: December 28, 2009




APPEARANCES:

        Dorothy Liggett-Pelanda for Appellant

        Bridget D. Hawkins for Appellee
Case No. 8-09-11




PRESTON, P.J.

       {¶1} Plaintiff-appellant and cross-appellee, David L. Scales (hereinafter

“David”), and defendant-appellee and cross-appellant, Destinie Scales (hereinafter

“Destinie”), appeal the Logan County Court of Common Pleas’ judgment entry of

divorce. We affirm.

       {¶2} David and Destinie were married on August 27, 1983. (Apr. 28,

2008 Tr. at 60, 107). Five (5) children were born as issue of the marriage: David

L. Scales, II (D.O.B. 2/13/86); Hilary R. Scales (D.O.B. 9/18/89); Rebecca A.

Scales (D.O.B. 3/16/90); Paul M. Scales (D.O.B. 1/12/92); and Jordan W. Scales

(D.O.B. 11/28/95). (Id.); (Mar. 24, 2009 JE, Doc. No. 79).

       {¶3} On October 15, 2007, David filed a complaint for divorce. (Doc. No.

1). The complaint proceeded to a final divorce hearing on April 28, 2008. (Doc.

Nos. 42, 51, 53).

       {¶4} On March 24, 2009, the trial court filed its judgment entry granting

David’s complaint for divorce upon the ground of gross neglect under R.C.

3105.01(F). (Doc. No. 79). After making a division of the parties’ property, the

trial court ordered that David be designated as the residential parent and legal

guardian of the parties’ two minor children, Paul and Jordan. (Id.). The trial court

further ordered that Destinie pay child support to David in the amount of $238.24



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per month. (Id.). The trial court ordered that David pay Destinie spousal support

for sixty (60) months in the sum of $1,045.83/month less Destinie’s child support

obligation ($238.24) for a net total of $828.50/month. (Id.).

       {¶5} On April 20, 2009, David filed his notice of appeal. (Doc. No. 90).

On April 23, 2009, Destinie filed her notice of appeal. David now appeals to this

Court asserting one assignment of error for our review. In her cross-appeal,

Destinie has asserted one assignment of error for our review as well. Since both

parties have appealed the trial court’s spousal support award, we elect to address

these assignments of error together.

                     DAVID’S ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT AWARDED
       SPOUSAL SUPPORT TO APPELLEE. JUDGMENT ENTRY
       FILED MARCH 24, 2009.

       DESTINIE’S ASSIGNMENT OF ERROR ON CROSS-APPEAL

       THE TRIAL COURT ABUSED ITS DISCRETION IN
       LIMITING CROSS APPELLANT’S AWARD OF SPOUSAL
       SUPPORT TO FIVE YEARS.

       {¶6} In his assignment of error, David argues that the trial court abused its

discretion when it ordered him to pay $1,066.00 per month in spousal support for

five (5) years when the trial court failed to consider the R.C. 3105.18(C) factors.

Specifically, David argues that the trial court erred by not making specific findings

of fact relative to each statutory factor. David further argues that there was

insufficient evidence upon which the trial court made its spousal support


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calculation since there was no testimony regarding: Destinie’s monthly budget;

lost income production; or the amount of money Destinie would need to obtain

additional education. David also points out that the trial court did not attach a

calculation sheet to its judgment entry, and that the judgment entry is unclear as to

whether his support obligation is five (5) or six (6) years.

       {¶7} Destinie, in her assignment of error, argues that the trial court abused

its discretion by failing to permanently award her spousal support. Destinie argues

that the trial court failed to consider the duration of the marriage and her physical

condition under R.C. 3105.18. Destinie also argues that she was entitled to a

permanent award of spousal support because: the marriage was a long-term

marriage; she was advanced in age and a homemaker; and she had little

opportunity to develop employment outside the home.

       {¶8} R.C. 3105.18 provides, in relevant part:

       (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;
       (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 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;
       (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.

A trial court must make specific findings “to enable a reviewing court to

determine the reasonableness of its order to grant or deny a request for spousal

support and that the relevant factors within R.C. 3105.18 were considered.”

Hendricks v. Hendricks, 3d Dist. No. 15-08-08, 2008-Ohio-6754, ¶31, quoting Lee

v. Lee, 3d Dist. No. 17-01-05, 2001-Ohio-2245. However, a trial court’s failure to

“specifically enumerate” the factors is not reversible error. Hendricks, 2008-Ohio-

6754, at ¶31, citations omitted. Appellate review of a trial court’s spousal support

determination is under an abuse of discretion standard. Id. at ¶29, citing Siefker v.

Siefker, 3d Dist. No. 12-06-04, 2006-Ohio-5154, ¶15. An abuse of discretion is


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more than an error of law; rather, it implies that the trial court’s attitude was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1980), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140.

      {¶9} The trial court’s judgment entry of divorce lists the R.C.

3105.18(C)(1) factors, and then provides the following analysis of those factors:

      In considering the Defendant’s requests, the Court has
      considered and reviewed all of these factors and FINDS as
      follows:

      As to income of the parties from all sources and the relative
      income earning ability of the parties, the Plaintiff clearly has the
      larger of the income as well as the earning capacity of the
      parties. This was evident by the parties’ testimony and
      respective DR-10’s filed with the Court.

      As to the ages and physical, mental, and emotional conditions of
      the parties, that they are on fairly equal footing as to these
      factors. That the retirement benefits of the parties are a
      consideration since the Defendant has the potential of very
      minimal retirement of Social Security at best, while the Plaintiff
      has accumulated retirement benefits through employment. At
      the same time, these retirement benefits have been considered in
      the division of property and should not be considered here.

      The Court FINDS that the provisions of O.R.C. 3105.18(C)(1)(g)
      and (h) are factors to be considered in the instant case, because
      Plaintiff has the advantage over the Defendant with respect to
      earning capacity. While the Defendant offered testimony
      concerning her financial needs for spousal support, there was no
      specific testimony as to the amount or the standard of living of
      the parties established during the marriage. However, it is clear
      from the income disparity that the standard of living of the
      Defendant would be considerably less than that of the Plaintiff
      without some consideration of spousal support. However, the
      Court also considers Tremaine v. Tremaine (1996), 111 Ohio
      App.3d 703, 676 N.E.2d 1249, which holds that O.R.C.


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      3105.18(C)(1)(g) does not require a support award that provides
      the parties with equal standards of living.

      The Court further FINDS that there was no testimony offered
      regarding the tax consequences of either party or the impact of
      an award of spousal support, nor was there any testimony that
      the Defendant lost income production capacity resulting from
      her marriage responsibilities or anything regarding the standard
      of living of the parties. Defendant did testify that she would
      require additional education to obtain employment outside of
      factory work in order to be able to be self-supporting even
      though she provided no evidence of the cost or duration of such
      training. Accordingly the provisions of R.C. 3105.18(C)(1)(j),
      (k), (l), or (m) were not factors to be considered in the instant
      case.

      The Court further FINDS that as to the duration of the
      marriage, the parties were married on August 27, 1983,
      representing a marriage of over twenty-four years at the time of
      the final hearing. The Court FINDS that based on a twenty-four
      year marriage, and the other factors enumerated above, an
      award of spousal support is indicated.          In making that
      determination, the Court considered and reviewed the following
      case law: Kunkle v. Kunkle (1990), 51 Ohio St.3d [6]4, 554 N.E.2d
      83, sets forth the proposition that absent mitigating factors an
      award of spousal support should be of definite duration.

(Mar. 24, 2009 JE, Doc. No. 79, at 9-10).

      {¶10} After reviewing the record herein, we cannot conclude that the trial

court abused its discretion by ordering David to pay Destinie spousal support in

the amount of $1,066.74 per month for five (5) years.         Contrary to David’s

argument, the trial court clearly considered those R.C. 3105.18(C)(1) factors

relevant to the case before it. (Id.). The trial court also had before it a monthly

budget of the parties. (Apr. 28, 2008 Tr. at 98, 133); (Def.’s Ex. B). Also contrary



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to David’s assertions, the trial court clearly noted that Destinie failed to produce

evidence concerning her lossed income production capacity and how much money

she would need for further education. (Mar. 24, 2009 JE, Doc. No. 79, at 9-10).

The trial court, therefore, found that these factors ((k) & (l)) were not relevant to

its determination since no evidence was presented on these factors. (Id.). Both

parties failed to produce evidence concerning the tax consequences of the trial

court’s award of spousal support. (Id.). We find no abuse of discretion with the

trial court finding irrelevant those factors for which the parties failed to produce

evidence. We also reject David’s assertion that the trial court erred by failing to

attach a computation of its spousal support award to the judgment entry. A trial

court has broad discretion in fashioning a spousal support award based upon the

circumstances of the case. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 24, 550

N.E.2d 178; Noll v. Noll (1989), 55 Ohio App.3d 160, 162, 563 N.E.2d 44. Here

the trial court found the duration of the marriage (24 years) and the income

disparity important when fashioning its spousal support award. Nonetheless, it

also considered it important that the award be definite in duration. We find no

abuse of discretion with the trial court’s spousal support award. Finally, the trial

court clarified that David was ordered to pay spousal support for five (5) years in

its nunc pro tunc entry filed on May 19, 2009. (Doc. No. 111).

       {¶11} We must also reject Destinie’s arguments.       To begin with the trial

court did consider the duration of the marriage and Destinie’s physical condition


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in its judgment. (Mar. 24, 2009 JE, Doc. No. 79). In fact, Destinie was awarded

five (5) years of spousal support in large part due to the fact that the parties were

married for twenty-four (24) years. (Id.). The trial court also noted that the parties

were on “equal footing” with regard to their health, and the record supports the

trial court’s assessment in this regard. Although Destinie testified that she had

blood clots in her leg and back injuries, David testified that he had a pacemaker

and was taking medication for rheumatoid arthritis. (Apr. 28, 2008 Tr. at 95, 105,

109). Furthermore, we reject Destinie’s argument that the trial court abused its

discretion by failing to award her permanent spousal support. Contrary to her

assertions otherwise, Kunkle v. Kunkle does not require the trial court to award a

spousal support permanently if the spouse seeking support meets all of its

mitigating factors. Hutta v. Hutta, 177 Ohio App.3d 414, 2008-Ohio-3756, 894

N.E.2d 1282, ¶40, citing Sears v. Sears, 5th Dist. No. 2001CA00368, 2002-Ohio-

4069, ¶¶18-19. Although the marriage was long term, Destinie worked outside of

the home throughout the marriage including at: Wal-Mart, Bob Evans, Burger

King, and, for the past seven (7) years, on an assembly line for Honda. (Id. at 110-

11). When asked if she could return to her job at Honda, Destinie testified “yes *

* * I am optimistic.” (Id. at 112). Furthermore, at the time of the final divorce

hearing, Destinie was only forty-four (44) years old. (See Doc. No. 1 (Destinie’s

d.o.b. 8/22/63); Doc. No. 37 (same); Doc. No. 72 (same)). We cannot find that the




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trial court abused its discretion by not awarding Destinie a permanent award of

spousal support under the facts and circumstances of this case.

        {¶12} For all these reasons, David and Destinie’s assignments of error are

overruled.

       {¶13} Having found no error prejudicial to the appellant or the cross-

appellant in the particulars assigned and argued, we affirm the judgment of the

trial court.

                                                                  Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jnc




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