[Cite as Batten v. Batten , 2011-Ohio-3803.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

VIRGINIA FAY BATTEN                                JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                        Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 11-CA-1
WILLIAM HENRICHS BATTEN

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Fairfield County Court of
                                               Common Pleas, Domestic Relations
                                               Division, Case No. 2005 DR 00106


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         August 1, 2011


APPEARANCES:


For Plaintiff-Appellant                        For Defendant-Appellee


RANDY S. KUREK                                 GERALD L. STEBELTON
130 East Chestnut Street, Suite 402            CHARLES M. ELSEA
Columbus, Ohio 43215-3742                      Stebelton, Aranda & Snider
                                               109 N. Broad Street, P.O. Box 130
                                               Lancaster, Ohio 43130

DAVID B. SHAVER
647 Hill Road North
Pickerington, Ohio 43147
Fairfield County, Case No. 11-CA-1                                                     2

Hoffman, J.


      {¶1}    Plaintiff-appellant Virginia Batten appeals the December 10, 2010 Entry

issued by the Fairfield County Court of Common Pleas, Domestic Relations Division.

Defendant-appellee is William Batten.

                       STATEMENT OF THE FACTS AND THE CASE

      {¶2}    Appellant and Appellee were married on September 15, 1984. One child

was born of the marriage, and is now emancipated. Appellant filed a Complaint for

Divorce on March 5, 2005. Appellee filed an answer and counterclaim. During the

pendency of the action, the judge originally assigned to the case retired from the bench.

Upon motion of Appellee, the Ohio Supreme Court assigned the retiring judge to

continue to preside over the case.

      {¶3}    The matter came on for trial on October 12, 2007. On the morning of the

first day of trial, Appellant voluntarily dismissed her Complaint and the trial proceeded

on Appellee's counterclaim.

      {¶4}    Appellee is an urologist and is self-employed through his medical practice.

His gross income from the medical practice in 2006 was $475,000. Appellant was a

career homemaker for a majority of the marriage. She has a high school diploma and

she had been taking courses at Columbus State University towards an associate's

degree in accounting. The trial court established the termination date of the marriage as

December 31, 2005. At the time of the termination of the marriage, Appellant was 48

years old and Appellee was 50 years old. In addition to the income he earned from his

medical practice, Appellee had an interest in several other business ventures. The
Fairfield County, Case No. 11-CA-1                                                       3


parties had numerous bank and investment accounts with substantial cash balances;

however, they lived a relatively frugal lifestyle.

        {¶5}   On October 7, 2008, the trial court issued Findings of Fact and

Conclusions of Law, followed on December 2, 2008, by it Entry-Clarification of Findings

of Fact and Conclusions of Law. The trial court issued the Decree of Divorce on May 12,

2009.

        {¶6}   Appellant had been receiving $5,000 per month in spousal support since

June, 2005. In its Decree of Divorce the trial court found she was entitled to spousal

support in the amount of $7,500 per month from May 12, 2009, to December 31, 2012.

Thereafter, from January 1, 2013, to December 31, 2014, Appellant would receive

$2,500 per month in spousal support. The trial court determined the amount and

duration of spousal support based on its conclusion the parties' marriage was not one of

long duration. The trial court further found the amount of spousal support was

appropriate based on the fact Appellant would obtain her associate's degree in

accounting and be employed in the accounting field by December 31, 2010.

        {¶7}   Appellant timely appealed the trial court's decision. This Court affirmed in

part, and reversed and remanded in part solely on the issue of the amount and duration

of spousal support. Batten v. Batten, Fairfield App. No. 09-CA-33, 2010-Ohio-1912

(“Batten I”). The Ohio Supreme Court declined further review. Batten v. Batten, 126

Ohio St.3d 1583, 2010-Ohio-4542.

        {¶8}   On September 30, 3010, Appellant filed a motion, requesting the trial court

schedule a pretrial as well as a final hearing based upon this Court’s remand order.

Appellee opposed the motion, arguing the taking of additional evidence was “immaterial
Fairfield County, Case No. 11-CA-1                                                        4


and irrelevant to the facts which [the court could] consider upon remand.” The trial court

found additional evidence was unnecessary and permitted the parties to file additional

findings of fact and conclusions of law if he/she so chose.

         {¶9}   Via Entry filed December 10, 2010, the trial court modified its original

spousal support award. The trial court ordered Appellee to pay spousal support to

Appellant in the amount of $7,500 per month from June 1, 2009, through December 31,

2010, followed by $5,000 per month from January 1, 2011, through September 30,

2019. The trial court also found the parties’ marriage to be “a long-term marriage”.

         {¶10} It is from this entry Appellant appeals, raising the following assignments of

error:

         {¶11} “I. THE TRIAL COURT’S DETERMINATION RELATING TO SPOUSAL

SUPPORT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,

CONTRARY TO LAW, AND CONTRARY TO THE PRIOR DECISION OF THIS

COURT, IN THAT THE AWARD WAS FOR A DEFINITE PERIOD OF TIME, AND THE

AMOUNT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶12} “II. THE TRIAL COURT ERRED IN NOT CONSIDERING ADDITIONAL

EVIDENCE AS TO THE CIRCUMSTANCES WHICH HAD CLEARLY CHANGED

FROM THE DATE OF THE TRIAL MORE THAN THREE YEARS EARLIER, WHEN

THIS COURT WAS CLEAR THAT SUPPORT SHOULD BE INDEFINITE, AND

SUBJECT TO MODIFICATION.”

                                                  I

         {¶13} In her first assignment of error, Appellant contends the trial court’s award

of spousal support was against the manifest weight of the evidence, contrary to law, and
Fairfield County, Case No. 11-CA-1                                                       5

contrary to this Court’s decision in Batten I, supra. Appellant further asserts the trial

court’s decision not to award indefinite spousal support was against the manifest weight

of the evidence.

       {¶14} This Court reviews the trial court’s decision relative to spousal support

under an abuse of discretion standard. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67,

       {¶15} We find the trial court did not abuse its discretion in fashioning the spousal

support award as it did. We concede the language in Batten I could be read to imply the

trial court should, upon remand, award a greater amount of spousal support for each

month. However, it is clear the trial court did increase the total amount of spousal

support Appellant will receive by over 70%. As such, we find the trial court did comply

with our prior order and did not violate the law of the case.

       {¶16} With respect to the duration of the award, we, likewise, find the trial court

did not abuse its discretion.      In Batten I, this Court found the trial court erred in

determining the parties’ marriage was not a long-term marriage. However, the fact we

found the marriage to be one of long duration does not, in and of itself, require the trial

court to award indefinite spousal support. Hutta v. Hutta, 177 Ohio App.3d 414, 2008-

Ohio-3756 (finding Kunkle should not be read to mandate permanent spousal support in

marriages of long duration). The trial court did comply with this Court’s order to extend

the duration of spousal support.

       {¶17} Upon review of the new spousal support order, we find the trial court’s

spousal support order does not demonstrate an abuse of discretion.

       {¶18} Appellant’s first assignment of error is overruled.
Fairfield County, Case No. 11-CA-1                                                          6


                                                 II

       {¶19} In her second assignment of error, Appellant maintains the trial court erred

in not considering additional evidence relative to the issue of the amount and duration of

spousal support. We disagree.

       {¶20} “Upon remand from an appellate court, the lower court is required to

proceed from the point at which the error occurred.” State ex rel. Stevenson v. Murray

(1982), 69 Ohio St.2d 112, 113. This Court remanded the matter on the issue of the

amount and duration of spousal support. Thus, the trial court was required to address

the issue from the point at which the error occurred, i.e., the date of the original trial. “A

remand for ‘further proceedings' should not be interpreted as a remand for ‘further

hearings' where no further hearings would have been required from the point of error

forward”. In re Swingle, Muskingum App. No. CT08-0060, 2009-Ohio-1194 (Citation

omitted).

       {¶21} Appellant’s second assignment of error is overruled.
Fairfield County, Case No. 11-CA-1                                             7


       {¶22} The judgment of the Fairfield County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ W. Scott Gwin _____________________
                                        HON. W. SCOTT GWIN


                                        s/ John W. Wise _____________________
                                        HON. JOHN W. WISE
Fairfield County, Case No. 11-CA-1                                             8


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


VIRGINIA FAY BATTEN                     :
                                        :
       Plaintiff-Appellant              :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
WILLIAM HENRICHS BATTEN                 :
                                        :
       Defendant-Appellee               :        Case No. 11-CA-1



       For the reasons stated in our accompanying Opinion, the judgment of the

Fairfield County Court of Common Pleas, Domestic Relations Division, is affirmed.

Costs to Appellant.




                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ W. Scott Gwin _____________________
                                        HON. W. SCOTT GWIN


                                        s/ John W. Wise _____________________
                                        HON. JOHN W. WISE
