[Cite as Spearman v. Spearman, 2016-Ohio-11.]


                                      COURT OF APPEALS
                                     KNOX COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                        JUDGES:
JAMIE L. SPEARMAN                               :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. Sheila G. Farmer, J.
                        Plaintiff-Appellee      :       Hon. John W. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 15CA10
PHILLIP S. SPEARMAN                             :
                                                :
                   Defendant-Appellant          :       OPINION




CHARACTER OF PROCEEDING:                            Civil appeal from the Knox County Court of
                                                    Common Pleas, Domestic Relations
                                                    Division, Case No. 14DC01-0014


JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             January 4, 2016



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JAMES GILES                                         PHILLIP LEHMKUHL
109 East High Street                                101 North Mulberry Street
Mount Vernon, OH 43050                              Mount Vernon, OH 43050
Knox County, Case No. 15CA10                                                              2

Gwin, P.J.

       {¶1}   Appellant appeals the April 21, 2015 judgment entry of the Knox County

Court of Common Pleas, Domestic Division, overruling his objections to the February 10,

2015, Magistrate’s Decision.

                                   Facts & Procedural History

       {¶2}   Appellant Phillip Spearman (“Husband”) and appellee Jamie Spearman

(“Wife”) were married on April 16, 1988. On January 15, 2014, Wife filed a complaint for

divorce. The parties have three children. At the time of the final hearing, the two older

children had reached the age of majority.

       {¶3}   A trial was held on October 16, 2014. Husband testified that he wants to

keep the martial residence and will assume the approximately $67,695 mortgage

remaining on the residence. Husband is in good health and worked full-time during the

marriage at UPS. Husband agreed that Wife did not have to work during the marriage

unless she wanted to. Husband testified that he borrowed $30,000 from his father in

January of 2014 to pay down credit cards and get out of debt. Husband has not been

able to pay his father the $500 monthly payment on this debt. Husband stated that his

father will not take collection action against him even though Husband has not made the

monthly payments. Husband did not discuss borrowing this money with Wife as it was

done after the left the marital residence.

       {¶4}   Husband testified that, since January 15, 2014, his monthly bills consistently

exceed his income. Husband asserted that while he has to pay 75% of the martial debt,

Wife only has to pay 25% of the martial debt. Husband stated his monthly budget is

$3,421.10 per month, but his income is only $2,081.45 per month. This $2,081.45 figure
Knox County, Case No. 15CA10                                                                3


has health insurance and 401(k) deductions taken out; however, Husband included health

insurance and 401(k) expenses in his monthly budget expenses. Husband stated that he

cannot pay spousal support because he does not have the money.

       {¶5}       Wife testified that she is in good health. She is a high school graduate who

is currently working at a travel management company. During the marriage, she worked

part-time around the children’s schedules. At the time of the trial, she lived with her

parents, but had plans to move out and establish a home separate from her parents. Wife

testified to her monthly expenses, including rent, utilities, food, transportation, clothing,

child-related expenses, and insurance premiums. Wife stated her monthly budget would

be $2,858. Wife’s budget included expenses from the parties’ minor child who resides

primarily with her, but did not include the monthly payments required to service the debt

she was ordered to pay. Wife testified that she did not know about the loan from

Husband’s father until after the divorce was filed.

       {¶6}       The magistrate issued a decision on February 10, 2015. The magistrate

found that each party had net assets of $4,464. Wife was assigned liabilities totaling

$14,657 and Husband $101,174. Husband’s liabilities included $67,695 on the martial

residence that Husband sought to keep, a $6,989 property settlement to Wife, $6,840 in

credit card debt, and $14,000 owed to his father. Wife’s liabilities of $14,657 included a

credit card debt of $10,690 and payments on a loan used to purchase a vehicle for the

parties’ child.

       {¶7}       With regards to spousal support, the magistrate completed a detailed

analysis of each factor of R.C. 3105.18. The magistrate found the income of the parties

to be: $24,960 annually for Wife and $47,090.20 annually for Husband. As to the parties’
Knox County, Case No. 15CA10                                                               4


earning abilities, the magistrate found that Husband is earning twice as much as Wife, as

Wife’s earning ability is $25,000 annually and Husband’s earning ability is $47,000

annually. Both parties are in good health. Husband has a 401(k) retirement plan that will

be equally divided among the parties. The parties were married for twenty-six (26) years.

With regards to the parties’ standard of living, the magistrate found that the parties lived

marginally and had a modest standard of living. Wife is a high school graduate and the

magistrate stated that no evidence was presented as to Husband’s education. As to

assets and liabilities, the magistrate found that each party received total assets of $4,464.

Further, that Husband is to pay child support of $443.19 per month. The magistrate stated

that spousal support would be tax deductible to Husband would be income to Wife.

       {¶8}   The magistrate found that Wife has an estimated budget of $2,858 per

month. Further, that Husband’s estimated monthly living expenses of $3,421 per month

included a $500 monthly payment to his father; however, Husband testified that he is not

currently paying this debt. Accordingly, the magistrate found that Husband’s appropriate

and reasonable budget per month is $2,900, including child support, which will end in

June of 2016 when his monthly living expenses will be reduced. The magistrate also

noted that Husband reduced his debt by $7,553 during the pendency of the divorce case.

The magistrate found that factors (f), (j), (k), and (m) were not applicable to this case.

Based upon the analysis of factors contained in R.C. 3105.18, the magistrate found

spousal support to be reasonable and appropriate.

       {¶9}   Husband filed objections to the magistrate’s decision, arguing that his

income is insufficient to pay spousal support.
Knox County, Case No. 15CA10                                                            5


       {¶10} The trial court issued a judgment entry on April 21, 2015. The trial court

found that the magistrate properly considered all the statutory factors with regards to

spousal support. The trial court stated that especially significant is the length of the

marriage and the fact that Husband’s income is nearly twice that of Wife. The trial court

found that the parties have similar monthly living expenses. Further, that Husband’s

taxable income will be reduced by the payment of spousal support, so his take home pay

will increase. The trial court overruled Husband’s objections to the magistrate’s decision

and affirmed the award of spousal support of $400 per month until Wife remarries,

cohabitates with an unrelated adult male, or is earning approximately $40,000 or more

annually, whichever occurs first.

       {¶11} Husband appeals the April 21, 2015 judgment entry and assigns the

following as error:

       {¶12} “I. THE TRIAL COURT ERRED BY REQUIRING APPELLANT TO PAY

SPOUSAL SUPPORT TO APPELLEE WHEN IT IS FINANCIALLY IMPOSSIBLE FOR

HIM TO DO SO, GIVEN HIS DEBT OBLIGATIONS, AND HIS REASONABLE LIVING

EXPENSES.”

                                               I.

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

discretion in awarding spousal support in an amount which will cause his monthly

expenses to exceed his income. Husband contends the trial court erred when it imposed

a financial obligation upon Husband when he cannot afford to pay it. We disagree.

       {¶14} A trial court’s decision concerning spousal support may be altered only if it

constitutes an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 554 N.E.2d 83
Knox County, Case No. 15CA10                                                                 6


(1990). An abuse of discretion connotes more than an error of law or judgment; it implies

that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).           R.C. 3105.18(C)(1) provides

that a trial court may award spousal support when it is “appropriate and reasonable.” R.C.

3105.18(C)(1) sets forth the factors a trial court must consider in determining whether

spousal support is appropriate and reasonable and in determining the nature, amount,

terms of payment, and duration of spousal support.

       {¶15} These factors include: (a) income of the parties, from all sources * * *; (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; (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

* * *; (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; and (n) any other factor that the court expressly finds to be relevant and

equitable.
Knox County, Case No. 15CA10                                                               7


       {¶16} Trial courts must consider all the factors listed in R.C. 3105.18(C). We have

previously held that a trial court need not acknowledge all evidence relative to each and

every factor listed in R.C. 3105.18(C) and we may not assume that the evidence was not

considered. Hutta v. Hutta, 177 Ohio App.3d 414, 2008-Ohio-3756, 894 N.E.2d 1282 (5th

Dist.). The trial court need only set forth sufficient detail to enable a reviewing court to

determine the appropriateness of the award. Id, citing Kaechele v. Kaechele, 35 Ohio

St.3d 93, 518 N.E.2d 1197 (1988).

       {¶17} In its judgment entry, the magistrate specifically cited and analyzed all the

relevant factors of R.C. 3105.18 in determining that spousal support is appropriate and

reasonable. Further, in the trial court’s judgment entry overruling Husband’s objections,

the trial court found that all the statutory factors were appropriately considered by the

magistrate.

       {¶18} Husband argues that since he cannot afford to pay spousal support and that

if he has to pay spousal support his monthly cash flow will be a deficit, the trial court

abused its discretion in awarding spousal support. However, simply because spousal

support creates a negative cash flow for one of the parties does not necessarily lead to a

finding of an abuse of discretion.         Compton v. Compton, 5th Dist. Stark No.

2014CA00207, 2015-Ohio-4327; Taylor v. Taylor, 5th Dist. Stark No. 2013CA00130,

2013-Ohio-4958.

       {¶19} In this case, we find no abuse of discretion in the magistrate and trial court’s

decision regarding spousal support and our review of the record reveals the presence of

credible evidence supporting the trial court’s determinations.
Knox County, Case No. 15CA10                                                             8


       {¶20} The parties were married for twenty-six years. Husband’s income is nearly

twice that of Wife’s. The parties have similar monthly living expenses. Wife testified to

her monthly expenses of $2,858 per month. Though Husband argued that his expenses

were $3,421 per month, the magistrate found Husband’s expenses per month to be

$2,900, including child support.    This determination is supported by competent and

credible evidence, as Husband testified that he is not currently paying a $500 per month

debt to his father and that his father would not move to collect on the debt. Additionally,

Husband’s child support obligation will end in June of 2016 which will reduce Husband’s

monthly living expenses. The magistrate and trial court further noted that Husband’s

taxable income will be reduced by the payment of spousal support and thus his take home

pay will increase.

       {¶21} While Husband contends that he cannot afford spousal support because his

proportion of debt is larger than Wife’s, the magistrate divided the assets and liabilities

such that an equal award of net assets were awarded to each party ($4,464). Further,

Husband’s share of the debt was larger than Wife’s because it included the approximately

$68,000 mortgage on the martial home which Husband retained and a debt owed to his

father that Husband is not currently paying. Husband testified at the hearing that he

desired to retain the marital home despite the mortgage obligation and payment to Wife

for 50% of the equity in the marital home. Further, that he was not paying the debt owed

to his father.

       {¶22} Based upon the record before us, we find the amount of spousal support

ordered is not an abuse of discretion. Husband’s assignment of error is overruled.
Knox County, Case No. 15CA10                                               9


      {¶23} The April 21, 2015 judgment entry of the Knox County Common Pleas

Court, Domestic Relations Division, is affirmed.



By Gwin, P.J.,

Farmer, J., and

Wise, J., concur
