[Cite as Barrientos v. Barrientos, 2013-Ohio-424.]




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




JOYCE A. BARRIENTOS,

        PLAINTIFF-APPELLEE,                             CASE NO. 5-12-13

        v.

GUILLERMO M. BARRIENTOS,                                OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                           Domestic Relations Division
                          Trial Court No. 2007-DR-426

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: February 11, 2013




APPEARANCES:

        Joseph A. Benavidez for Appellant

        Kelton K. Smith for Appellee
Case No. 5-12-13



WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Guillermo M. Barrientos (“Guillermo”), appeals

from the judgment of the Hancock County Court of Common Pleas, Domestic

Relations Division, granting a divorce from Plaintiff-Appellee, Joyce A.

Barrientos (“Joyce”). On appeal, Guillermo contends that the trial court erred in

awarding Joyce property that he contends was his separate property from a

personal injury settlement and that the trial court abused its discretion in its

determination of the amount and duration of spousal support he was ordered to

pay Joyce. For the reasons set forth below, the judgment is affirmed in part and

reversed in part.

       {¶2} On August 22, 2000, Guillermo was severely injured in an industrial

explosion and was hospitalized for nearly a month with severe burns and rotator

cuff injuries. Joyce and Guillermo had been living together prior to the accident.

When he was discharged from the hospital, he returned home and Joyce provided

for his care. The couple married shortly thereafter on October 20, 2000. Both

parties were in their forties at the time of the marriage and no children were born

as issue of this marriage, although both had children from their previous

marriages.

       {¶3} Joyce continued to care for Guillermo through a lengthy

convalescence. Joyce testified that the doctors had wanted to place Guillermo in a

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rehabilitation center for six months to a year. She knew that he would not be able

to adjust to that, so she learned how to provide the nursing care that was needed to

care for his burns and his skin grafts at home. (Tr. pp. 17-19) The extent of

Guillermo’s injuries prevented him from returning to work.

       {¶4} In October of 2006, a settlement agreement was finally reached

concerning the accident. The parties stipulated that Joyce was also a party to the

settlement agreement, as well as Guillermo’s minor children. (Trial Tr. 11/13/08,

pp. 8-9) Guillermo received two checks in the amounts of $794,784.80 and

approximately $98,000. There was also a separately funded monthly annuity

payment of $2,300 from MetLife as part of the settlement.           Guillermo also

receives a $1,400 bi-weekly payment from the Bureau of Workers Compensation

(“BWC”), approximately $1,400 monthly Social Security disability payments,

plus $471 monthly in what he described as SSI. (Mag. Dec., p. 3) After receiving

the settlement, the couple put some of the money into another annuity at Chase

Bank; they used some of the money to help their relatives; and they also decided

that they were going to purchase investment property to fix up and rent out. (Tr.

24) They purchased four real estate properties and they also purchased several

vehicles that were used by the parties and their family members.

       {¶5} On December 12, 2007, Joyce filed for divorce. A hearing was held

on November 13, 2008. The main issues before the trial court concerned the


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division of the property.     Joyce had also requested spousal support in her

complaint. She testified that she was not employable due to her medical condition

(manic-depressive disorder) and she had no separate assets of her own. (Tr. 22-

24)

       {¶6} The magistrate issued a decision on December 17, 2008, finding that a

divorce should be granted on the basis of incompatibility. The magistrate

recommended that Guillermo be awarded the marital home (valued at $79,640)

and the vehicle that he had owned prior to the marriage (valued at $2,950), both of

which were classified as his separate property.

       {¶7} The magistrate acknowledged that the other assets owned by the

couple were obtained as a result of the settlement monies obtained from

Guillermo’s accident, but found that Guillermo had not sustained his burden of

demonstrating what funds were due to his personal injuries and what funds were

paid as compensation for lost wages, expense reimbursement, or consortium.

(Mag. Dec., p. 6)      The parties had stipulated that Joyce, Guillermo, and

Guillermo’s minor children were parties to the settlement agreement.           The

magistrate also found that the parties had co-mingled the funds that had been

received with marital income, and that it was not possible to completely separate

the settlement funds from marital funds. (Id.) Therefore, the magistrate found that

the parties had the following assets, which were categorized as marital property:


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        {¶8} The parties’ marital real estate:
              306 Center St.                                  $ 73,870.00
              430 Findlay St.                                 $ 48,640.00
              1332 Vincent St.                                $ 76,510.00
              224 Jefferson St.                               $ 23,680.00
                      Sub-Total (real estate):                $222,700.00

        {¶9} The parties’ vehicles:
              1998 Chevy Tahoe                                $ 4,260.00
              2001 Jaguar Sedan                               $ 8,735.00
              1996 Dodge Ram                                  $ 1.725.00
              1998 Dodge Durango                              $ 3,495.00
              2003 GMC Sierra                                 $ 5,810.00
              2000 Mitsubishi Mirage                          $ 2,650.00
              1995 Jeep Cherokee                              $ 1,225.00
              Yamaha motorcycle                               $ 8,500.00
                     Sub-Total (vehicles):                    $ 36,400.00

        {¶10} The parties’ bank accounts:
             Credit Union joint savings                       $ 1,572.07
             Credit Union checking                            $ 4,372.82
             Chase Bank savings                               $ 83,141.88
             Chase Bank checking                              $ 1,614.28
             Chase Bank savings                               $ 2,065.80
             Chase Bank annuity1                              $305,379.13
                     Sub-Total (accounts):                    $398,145.98

        {¶11} After reviewing and considering all of the relevant statutory factors

to provide for an equitable division of marital property, the magistrate

recommended that a division of 25% to Joyce and 75% to Guillermo was

“equitable under these unique circumstances.” The magistrate proposed that Joyce

be awarded the Findlay Street and Jefferson Street real estate (she currently resides


1
  This annuity was established shortly after the settlement monies were received and is separate and
different from the MetLife annuity; it has not yet matured. The MetLife annuity was established as a result
of the settlement and is currently providing Guillermo with a monthly payment of $2,300.

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in the Jefferson Street home), the Tahoe and the Jaguar (she testified that the

Jaguar was a birthday gift from Guillermo), and the $83,141.88 Chase savings

account.   The total value of Joyce’s property was approximately $168,456.

Guillermo was awarded the $305,379 Chase annuity, the Center Street and

Vincent Street properties, and the remaining vehicles and savings accounts, for a

total of $488,788 from the marital property division. He also was to retain the

income he received from the MetLife annuity and other sources (SSI and BWC).

       {¶12} Then, after again considering all of the relevant statutory factors, the

magistrate found that Joyce was entitled to receive spousal support.             The

magistrate recommended that spousal support should be set at $10,400 annually

($866 monthly) for a period of eleven years, until Joyce turned 62 and would be

eligible to receive Social Security. The trial court noted that $10,400 was the

federal poverty level for an individual for 2008, citing to the Federal Register, Vol.

73, No. 15, January 23, 2008, at 3971.             The magistrate stated that the

recommended amount of spousal support would provide Joyce with “basic

sustenance leaving any supplementation beyond poverty level to her rental or

interest income.” The trial court retained jurisdiction, stating that spousal support

would be modifiable in the event of Joyce’s employment or receipt of other

income, or in the event of a significant reduction in Guillermo’s monthly income.

It would terminate upon Joyce’s remarriage or the death of either party.


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       {¶13} Guillermo filed objections to the Magistrate’s Decision.           On

February 17, 2011, the trial court overruled the objections and the final Judgment

Entry was filed April 14, 2011. Guillermo appealed, and this Court reversed and

remanded due to the fact that it was unclear as to whether the trial court had

conducted a de novo review of the Magistrate’s Decision and independently

evaluated the evidence and applied the law. See Barrientos v. Barrientos, 196

Ohio App.3d 570, 2011-Ohio-5734, ¶ 7 (3d.Dist.).

       {¶14} Upon remand, the trial court reviewed the evidence utilizing the

proper standard of review and again overruled all objections to the Magistrate’s

Decision.   The trial court issued a Judgment Entry of Decree of Divorce on

February 15, 2012, adopting all stipulated facts entered into by the parties and the

findings of fact and conclusions of law as set forth in the Magistrate’s Decision of

December 17, 2008.

       {¶15} It is from this judgment that Guillermo now appeals, raising the

following three assignments of error for our review.

                           First Assignment of Error

       The trial court’s characterization of any portion of the
       settlement proceeds as marital property was against the manifest
       weight of the evidence because the settlement proceeds were
       wholly separate property and were not comingled with the
       marital property.




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                          Second Assignment of Error

      The magistrate improperly used the federal poverty level to
      establish the amount of trial support when neither party
      presented it as a relevant standard.

                           Third Assignment of Error

      The duration of spousal support awarded by the trial court is
      unsupported by both case law and the evidence presented.

                 First Assignment of Error – Division of Property

      {¶16} In his first assignment of error, Guillermo, contends that the trial

court erred when it classified the settlement proceeds as marital property. He

contends that the settlement monies were for his personal injuries, sustained prior

to the marriage, and were his separate property not subject to division, according

to R.C. 3105.171(A)(6)(a)(vi). He also challenges the Magistrate’s findings that

the separate settlement monies were co-mingled and untraceable.

      {¶17} Upon the application of either party in an action for divorce, the trial

court must determine what constitutes marital property and what constitutes

separate property, divide the marital property equitably between the parties, and

disburse a spouse's separate property to that spouse. R.C. 3105.171. The Ohio

Revised Code requires that a trial court divide the marital property equally unless

an equal division would be inequitable, in which case “the court shall not divide

the marital property equally but instead shall divide it between the spouses in the

manner the court determines equitable.” R.C. 3105.171(C)(1). Marital property

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includes property that is currently owned by either or both spouses and that was

acquired by either or both of the spouses during the marriage.          See R.C.

3105.171(A)(3)(a).

      {¶18} Property acquired during a marriage is presumed to be marital

property unless it can be shown to be separate. Huelskamp v. Huelskamp, 185

Ohio App.3d 611, 2009–Ohio–6864, ¶ 15 (3d Dist.). The definition of separate

property includes “all real and personal property and any interest in real or

personal property that is found by the court” to belong to one of the enumerated

categories in the statute, including “[c]ompensation to a spouse for the spouse's

personal injury, except for loss of marital earnings and compensation for expenses

paid from marital assets.” (Emphasis added.) R.C. 3105.171(A)(6)(a)(vi). Also,

if any portion of a personal injury award or settlement is attributable to the

“uninjured” spouse’s loss of consortium claim, then that portion of the award is

the separate property of the “uninjured” spouse.     Mayer v. Mayer, 5th Dist.

No.2010–CA–277, 2011–Ohio–1884, ¶ 8.

      {¶19} Trial courts have “broad discretion to determine what property

division is equitable in a divorce proceeding.” Cherry v. Cherry, 66 Ohio St.2d

348, paragraph two of the syllabus; Bisker v. Bisker, 69 Ohio St.3d 608, 609,

1994-Ohio-30. A reviewing court will not disturb the trial court's decision unless

it finds that the trial court abused its discretion. Holcomb v. Holcomb, 44 Ohio


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St.3d 128, 131 (1989). An abuse of discretion is more than an error in judgment;

it signifies that the trial court's attitude was unreasonable, arbitrary, or

unconscionable. Timberlake v. Timberlake, 192 Ohio App.3d 15, 2011–Ohio–38,

¶ 9 (3d Dist.), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). A

trial court will be found to have abused its discretion when its decision is contrary

to law, unreasonable, not supported by the evidence, or grossly unsound. Bruce v.

Bruce, 3d Dist. No. 9–10–57, 2012–Ohio–45, ¶ 13, citing State v. Boles, 187 Ohio

App.3d 345, 2010–Ohio–278, ¶ 17–18 (2d Dist.). When applying an abuse-of

discretion standard, an appellate court may not substitute its judgment for that of

the trial court. Blakemore; Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990).

       {¶20} Although appellate courts review a trial court’s division of property

under an abuse of discretion standard, a trial court’s characterization of property as

separate or marital is a mixed question of law and fact, which must be supported

by sufficient credible evidence. Kelly v. Kelly, 111 Ohio App.3d 641, 642 (1st

Dist.1996). The factual findings of a trial court relating to its classification of

property as marital or separate are reviewed to determine whether they are against

the manifest weight of the evidence and will not be reversed if they are supported

by some competent and credible evidence. Eggeman v. Eggeman, 3d Dist. No. 2-

04-06, 2004-Ohio-6050, ¶ 14, citing DeWitt v. DeWitt, 3d Dist. No. 9-02-42, 2003-

Ohio-851, ¶ 10. In determining whether competent, credible evidence exists, “[a]


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reviewing court should be guided by a presumption that the findings of a trial

court are correct, since the trial judge is best able to view the witnesses and

observe their demeanor, gestures, and voice inflections, and use those observations

in weighing the credibility of the testimony.”      Barkley v. Barkley, 119 Ohio

App.3d 155, 159 (4th Dist.1997), citing In re Jane Doe I, 57 Ohio St.3d 135

(1991).

       {¶21} In this case, it is clear that some of the settlement monies were meant

to compensate Guillermo for his personal injuries and would be his separate

property. However, the trial court found that Guillermo failed to sustain his

burden of demonstrating what amount of the settlement was attributable to

Guillermo’s “personal injury” as opposed to “loss of marital earnings” and any

reimbursement “for expenses paid from marital assets”. Based on the evidence in

the record and the stipulations, the trial court found that the evidence demonstrated

that a portion of the settlement monies were meant to reimburse the parties for loss

of marital earnings, compensation for expenses paid from marital assets, and to

compensate Joyce for her loss of consortium. In attempting to classify the funds,

the magistrate stated.

       If the funds received during the marriage do not fit that category [of
       compensation for personal injury], then they do not constitute
       separate property. The magistrate can only assume that some
       portion of the proceeds fits that category; however, there was no
       evidence of the details of the additional funded income stream,
       which also constitutes part of the settlement proceeds. Thus, the

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      amounts paid into that fund could constitute the portion related to the
      personal injuries.     The defendant was earning approximately
      $60,000 at the time of the injury, and the lost earnings over the
      course of the marriage could have accounted for at least $480,000 of
      the proceeds ($60,000 x 8 years of marriage). The parties stipulated
      that [Joyce], [Guillermo], and [Guillermo’s] minor children were all
      parties to the settlement agreement in October 2006. The name on
      the check does not control the determination of the property, nor
      does the deposit into the defendant’s individual account. The
      determinative factor when dealing with personal injury settlements is
      the accounting for the categories of damages. In the absence of
      some evidence of the distinctions, the magistrate must conclude that
      [Guillermo] failed to meet his burden of proof that the monies
      received were solely for his personal injury.

(Mag. Dec. 12/17/08 p. 6)

      {¶22} The trial court’s conclusions were consistent with those found by the

Ninth District Court of Appeals in a similar case where the appellate court found

that “the trial court’s inability to determine what amount of those proceeds was

payment for loss of wages and [the wife’s] loss of consortium as opposed to

compensation for [the husband’s] permanent injuries, pain and suffering, and

medical expenses was fatal to his claim of separate property.” Modon v. Modon,

115 Ohio App.3d 810, 815 (9th Dist. 1996). See, also, Cox v. Cox, 12th Dist. No.

CA98-05-007 (Feb. 16, 1999)

      {¶23} Although the compensation for Guillermo’s personal injuries would

be presumed to be his separate property, he failed to provide any evidence as to

how much of the settlement was attributable to his personal injuries. The trial

court repeatedly gave him opportunities and even delayed the trial when it granted

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Guillermo a continuance to support his contention that the money had “nothing to

do with Joyce.” (Hearing Tr. 10/21/08, p. 8)2 However, on the date of the trial,

the only specific evidence before the trial court was the parties’ stipulation that

both Joyce and Guillermo were parties to the settlement agreement. Neither party

was able to provide specific evidence as to what part or how much of the

settlement proceeds were intended for what purposes.

        {¶24} Furthermore, the trial court found that Guillermo comingled the

settlement proceeds with the BWC and SSI benefits that were received during the

marriage. He also borrowed funds during the marriage to purchase real estate, and

then used settlement proceeds to pay back that marital debt. The funds from

marital income received during the marriage went into accounts along with

settlement proceeds; the parties purchased vehicles and real estate putting them in

both Guillermo’s name and Joyce’s name; Joyce had access to funds to purchase

real estate at auction or otherwise; and they generally treated all of the money as a

joint pool of funds for purchases, including assisting both parties’ families. (Mag.

Dec. p. 7) “Thus, even if [Guillermo] could establish what portion of the funds

were attributable solely to his injury, the magistrate would have to conclude that




2
  Discussions at the hearing indicated that Guillermo had not provided discovery to the Plaintiff’s attorney
in response to their motion to compel, and his own attorney complained that he failed to communicate with
her, he did not return her phone calls, nor did he provide her with the paperwork she needed so that she
could represent him in court. (Tr. p. 12) The trial court reprimanded Guillermo, but did grant a
continuance.

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[Guillermo] failed to trace the current assets to the separate portion of the

settlement proceeds.” (Id.)

       {¶25} The facts in this case are complicated and somewhat unique, and the

trial court’s decision was made more difficult by the lack of cooperation and/or

inability of the parties to provide more definitive evidence. The trial court has

worked closely with the parties in this case for many years, as this divorce has

been pending since 2007. We find that the division of property was decided after

a lengthy and detailed review that analyzed all of the evidence that was before the

court in view of the statutory requirements and case law. Furthermore, besides the

enumerated factors, the trial court considered “any other factor[s] that the court

expressly finds to be relevant and equitable,” pursuant to R.C. 3105.171(F)(9).

The trial court acknowledged that the parties’ “financial windfall” was the result

of Guillermo’s unfortunate accident, and that Joyce had little or no assets at the

commencement of the marriage. Therefore, the magistrate found that assigning

Guillermo 75% of the property, in addition to his clearly established separate

property, as well as the MetLife annuity, was an equitable division in this case.

       {¶26} It is not our position to substitute our judgment for that of the trial

court. See Daniel v. Daniel, 3d Dist. No. 10-11-09, 2012-Ohio-5129, ¶ 21. The

trial court’s decision was supported by the evidence that was discernible from the

record and analyzed according to the law, with careful consideration as to what


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would be equitable under these circumstances. Therefore, we cannot say that the

trial court’s characterization of the property was against the manifest weight of the

evidence, nor that the court abused its discretion in the division of the property.

Guillermo’s first assignment of error is overruled.

            Second and Third Assignments of Error – Spousal Support

       {¶27} Both of these assignments of error pertain to spousal support so we

will address them together. Guillermo objects to both the amount and the duration

of spousal support that was ordered by the trial court. He contends that Joyce

failed to demonstrate a need for support, and that the trial court’s selection of the

federal poverty level to determine the amount of support payable was an arbitrary

and unreasonable standard. He also asserts that awarding spousal support for

eleven years, a period that was longer than the eight-year marriage, was

unreasonable.

       {¶28} Spousal support is defined in R.C. 3105.18(A) as “any payment or

payments * * * that is both for sustenance and for support of the spouse or former

spouse.” Trial courts are granted broad discretion concerning awards of spousal

support, and the a court’s decision will not be reversed on appeal absent an abuse

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

Siekfer v. Siekfer, 3d Dist. No. 12–06–04, 2006–Ohio–5154, ¶ 15. Accord, Kunkle

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


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fashioning an equitable spousal support award based upon the facts and

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

v. Cherry, 66 Ohio St.2d at 355. Thus, in reviewing a spousal support award on

appeal, the appellate court must “look at the totality of the circumstances and

determine    whether     the   trial   court     acted   unreasonably,   arbitrarily   or

unconscionably.” Kunkle at 67.

       {¶29} R.C. 3105.18 governs the trial court's award of spousal support and

requires the court to consider fourteen factors set forth in R.C. 3105.18(C)(1)

when determining whether spousal support is appropriate and reasonable, and

when determining the nature, amount, terms of payment, and duration of the

support. Strasburg v. Strasburg, 3d Dist. No. 2–10–12, 2010–Ohio–3672, ¶ 26;

Kunkle, supra.     The factors are “(a) the parties’ income, (b) the parties' earning

abilities, (c) the parties' ages and health, (d) the parties’ retirement benefits, (e) the

duration of the marriage, (f) the responsibilities of a party as custodian of a minor

child, (g) the standard of living established during the marriage, (h) the parties'

education, (i) the parties' assets and liabilities, (j) each party’s contribution to the

other’s education and career, (k) the needs of the party seeking support to acquire

work skills/education, (l) the tax consequences, (m) a party’s diminished earning

capacity as a result of his or her marital responsibilities, (n) any other factor the

court finds relevant and equitable.” Hawley v. Hawley, 11th Dist. No.2003-P-


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0096, 2004-Ohio-3189, ¶ 14, citing, R.C. 3105.18(C)(1). While a trial court may

consider any factor it considers relevant, including need, a party’s “need” is not

specifically one of the enumerated factors set forth in R.C. 3105.18, nor is it the

primary standard against which to evaluate the factors.             Muckensturm v.

Muckensturm, 3d Dist. No. 5-11-38, 2012-Ohio-3062, ¶ 20.

       {¶30} The record demonstrates that the magistrate did do a detailed

analysis of each of the factors in R.C. 3105.18 as they pertained to the facts in this

case. (Mag. Dec. pp. 10-12) The trial court found that there were numerous

factors indicating that spousal support was reasonable and appropriate, including

Joyce’s age (then 51), her limited education, her lack of significant work

experience and employment skills, her lack of retirement funds, and her mental

health condition. (Id.) The trial court acknowledged that Joyce did not provide

any information concerning her basic expenses and needs, but awarded her spousal

support based upon the federal poverty level to provide her with basic sustenance,

leaving any supplementation beyond poverty level to her rental or interest income.

(Id. at 12) Even though the marriage was only of eight years duration, the trial

court ordered that spousal support should be paid for a period of eleven years,

until Joyce reached age 62 and would be eligible for Social Security benefits. (Id.)

       {¶31} We do not disagree with the trial court’s conclusion, after its careful

consideration of all of the statutory factors, that some spousal support might be


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reasonable and appropriate. However, we find that the court’s determination and

calculation as to the amount of spousal support and its duration was arbitrary,

unreasonable, and not supported by the facts in the record.

       {¶32} First, while there might be some circumstances under which a

determination of spousal support based upon the federal poverty level would be

appropriate, that factor is completely arbitrary and unrelated to the facts in

evidence in this case. That level of basic need includes the cost of housing and

transportation. Yet, in this case, Joyce has been awarded two fully paid-for homes

and two vehicles, plus a bank account with over $83,000 in the property division.

There is no factual basis for utilizing that statistical level to determine the amount

of spousal support in this case.

       {¶33} While we acknowledge that Joyce’s employment prospects may not

be ideal, the record does not support the court’s assumption that she must be

supported by Guillermo until she reaches retirement age. Although Joyce testified

that she was unable to work due to her mental condition, she was not found to be

eligible for disability benefits by the Social Security Administration. Joyce had

worked in the past, and she testified as to how capable she was at providing

nursing care for Guillermo during his recovery. Furthermore, Joyce’s lack of

education and work experience was not the result of any opportunities that she had

sacrificed as a result of this relatively short marriage.          Her work-related


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circumstances and opportunities when she left the marriage were essentially the

same as when she entered it.

      {¶34} Joyce’s own testimony indicated that she did not want or need to

have this amount of spousal support.          On direct examination, while being

questioned by her own attorney, Joyce gave the following testimony concerning

her belief as to what level of support was appropriate and reasonable.

      Q. So if you are not awarded either spousal support, or a
      substantial cash award, how are you going to take care of yourself
      without Mr. Barrientos’s help?

      A.    I don’t know.

      ***

      Q. If you were awarded $83,000, the one bank account, would you
      still need spousal support from Mr. Barrientos to keep you going?

      A.    I wouldn’t take anything more from him, no.

      Q.    You would be satisfied with that?

      A.    Yes.

      Q. I guess to tie it up, I am trying to paraphrase, you would be
      happy about [receiving] a couple of houses, a couple of cars and one
      bank account?

      A.    Yes.

      Q.    And that would satisfy you? * * *

      A.    Yes.

(Trial Tr. 11/13/08, pp. 37-38)

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       {¶35} The Ohio Supreme Court has held that, with a few exceptions, such

as in the case of a marriage of long duration, spousal support awards should not be

indefinite, but should terminate upon a date certain.        Kunkle v. Kunkle, at

paragraph one of the syllabus. While Joyce’s spousal support does terminate,

upon her eligibility for Social Security retirement at age 62, the length of time she

would receive support is longer than the marriage itself by a considerable amount.

Although there is no specific formula or criteria to determine the appropriate

length of spousal support, we do not find that it is reasonable to require Guillermo

to support Joyce for eleven years after a marriage of fairly short duration. While

we realize that courts often have valid reasons for associating the spousal support

payment periods with the dates of retirement eligibility, we believe that there must

also be a correlation to the length of the marriage and the other statutory factors.

What if Joyce had been 41 or 31 years old at the time of the divorce? Would the

trial court have found it appropriate to order support for twenty-one or thirty-one

years under those circumstances?

       {¶36} This Court cannot find any other instances, nor has Joyce provided

any citations or references, where a trial court has found it appropriate to order

spousal support for a definite period that is longer than the marriage. While each

case is unique, and hard and fast rules are not applicable, courts generally award

spousal support for lengthy periods after marriages of long duration. See, e.g.,


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Muckensturm v. Muckensturm, 3d Dist. No. 5-11-38, 2012-Ohio-3062 (eleven

years of spousal support, where wife lost ability to earn income after twenty-years

of marriage as a homemaker and mother); Bowen v. Bowen, 132 Ohio App.3d

616, 627 (9th Dist.1999) (listing of marriages of “long duration” – all over twenty

years). The duration of the spousal support in this case far exceeds the duration

found in similar cases. See, e.g., Parker v. Kohl-Parker, 2d Dist. No. 21760,

2007-Ohio-5877 (thirty months spousal support appropriate for an eight-year

marriage); Kershner v. Kershner, 11th Dist. No. 2004-P-004, 2004-Ohio-1523 (a

three-year support period was appropriate for an eight year marriage). In fact, in a

case with similar facts as here, even when the marriage was one of long duration,

the trial court limited spousal support to a shorter period of time. See Earnest v.

Earnest, 151 Ohio App.3d 682, 2003-Ohio-704 (11th Dist.) (wife, who had a

sporadic employment history and an emotional condition, was awarded five years

of spousal support after a twenty-two year marriage).

       {¶37} The burden of establishing the need for spousal support rests with the

party that is seeking such support. Rymers v. Rymers, 11th Dist. No.2009–L–160,

2010–Ohio–6439, ¶ 38; Stetler v. Stetler, 6 Ohio App.3d 29 (3d Dist.1983) (while

there is no general burden of proof under R.C. 3105.18, each side has the burden

of going forward with evidence as to any factor which it wants considered,




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bringing forth facts tending to prove its version of the manner in which such

factors should be applied).

       {¶38} We acknowledge that there was some evidence in the record in

support of the trial court’s findings that spousal support would be appropriate

pursuant to the factors in R.C. 3105.18(C). However, based upon Joyce’s own

testimony disavowing her need for support and the arbitrary method of

determining the amount of support needed, we do not find sufficient evidence in

the record that would warrant the amount and duration of support that was decided

upon by the trial court. Therefore, Guillermo’s second and third assignments of

error are sustained.

       {¶39} We find no error prejudicial to the Appellant pertaining to his first

assignment of error, and the judgment of the trial court is affirmed pertaining to

the division of property. However, having found error prejudicial to the Appellant

herein in the particulars assigned and argued as to the second and third

assignments of error, we reverse the judgment of the trial court as it pertains to

spousal support and remand for further consideration consistent with this opinion.

                                                      Judgment Affirmed in Part,
                                                           Reversed in Part and
                                                              Cause Remanded

PRESTON, P.J. and ROGERS, J., concur.

/jlr


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