[Cite as Drouhard v. Drouhard, 2017-Ohio-7305.]


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

FRANKLIN DROUHARD                                      C.A. No.      16AP0044

          Appellee

          v.                                           APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
REGINA DROUHARD                                        COURT OF COMMON PLEAS
                                                       COUNTY OF WAYNE, OHIO
          Appellant                                    CASE No.   15-DR-B-0014

                                DECISION AND JOURNAL ENTRY

Dated: August 21, 2017



          SCHAFER, Judge.

          {¶1}     Defendant-Appellant, Regina Drouhard (“Wife”), appeals a decree of divorce

entered by the Wayne County Court of Common Pleas, Domestic Relations Division. For the

reasons set forth below, we affirm in part, reverse in part, and remand.

                                                  I.

          {¶2}     The parties were married on October 30, 1987.      Plaintiff-Appellee, Franklin

Drouhard (“Husband”), filed a complaint for divorce against Wife in the Wayne County Court of

Common Pleas, Domestic Relations Division, on January 16, 2015. The parties had separated

and been living apart since February of 2007. Wife answered and counterclaimed for divorce.

Wife also filed a motion for temporary orders seeking spousal support.

          {¶3}     On March 10, 2015, a magistrate held a hearing on Wife’s motion for temporary

orders.        After hearing argument from both parties, the magistrate took the matter under

advisement and issued a decision that “denied and overruled” Wife’s request for temporary
                                                 2


spousal support. In doing so, the magistrate “put great weight on the fact the parties have been

separated for seven years and certainly within those seven years, [Wife] could have asked for

some type of financial relief in the form of a divorce or a legal separation if she needed to rely on

[Husband] for financial assistance.” Wife filed timely objections to the magistrate’s decision,

which Husband opposed.        On April 23, 2015, the trial court summarily overruled Wife’s

objections to the magistrate’s decision.

          {¶4}   On February 9, 2016, the magistrate held a final hearing on Husband’s complaint

for divorce and on Wife’s counterclaim for divorce. Both parties were present and represented

by counsel at the final hearing. On May 16, 2016, the magistrate issued a decision “find[ing]

that the parties admitted that they are incompatible and should be granted a divorce on those

grounds.” Furthermore, for purposes of dividing marital property, the magistrate determined that

the parties’ were married “from October 30, 1987 through February 1, 2007.” The magistrate

selected February 1, 2007, as the de facto termination of marriage date because that was when

the parties separated. Lastly, as relevant to this appeal, the magistrate determined that, based on

the factors enumerated in R.C. 3105.18(C)(1), Husband shall pay spousal support to Wife “in the

amount of $150 per month for a third the length of the marriage, which is 73 months,” for a total

of $10,950.00. The trial court adopted the magistrate’s decision on May 17, 2016. Wife

thereafter filed timely objections to the magistrate’s decision and filed a transcript of the final

hearing with the trial court. On July 5, 2016, the trial court overruled Wife’s objections to the

magistrate’s decision. Wife then filed a motion for reconsideration, which the trial court denied

on July 17, 2016.

          {¶5}   Wife filed this timely appeal and presents two assignments of error for our

review.
                                                 3


                                                II.

                                     Assignment of Error I

       A spousal support award of $150 per month, from June 1, 2016 to July 1,
       2022, plus the trial court refusing to grant an initial temporary award or a
       final award of attorney fees and costs to Mrs. Drouhard, is an abuse of
       discretion.

       {¶6}    In her first assignment of error, Wife argues that the trial court abused its

discretion by denying her initial motion for temporary spousal support, by ordering Husband to

make “minimal” monthly spousal support payments, and by not awarding her attorney’s fees and

court costs.

       {¶7}    Generally, absent an error of law, “the decision to adopt, reject, or modify a

magistrate’s decision lies within the discretion of the trial court and should not be reversed on

appeal absent an abuse of discretion.” Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055,

2009–Ohio–3788, ¶ 5. “In so doing, we consider the trial court’s action with reference to the

nature of the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049–M,

2009–Ohio–3139, ¶ 18.

                                  A. Temporary Spousal Support

       {¶8}    Initially, we note that although Wife’s first assignment of error contends that the

trial court erred by denying her motion for temporary spousal support, the argument section of

her brief omits any discussion of temporary spousal support. App.R. 16(A)(7) provides that an

appellant’s brief shall include “[a]n argument containing the contentions of the appellant with

respect to each assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on which appellant

relies.” This Court has consistently stated that “[i]f an argument exists that can support [an]

assignment of error, it is not this court’s duty to root it out.” Cardone v. Cardone, 9th Dist.
                                                4


Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998), citing App.R. 12(A)(2) and App.R.

16(A)(7). Accordingly, Wife’s first assignment of error is overruled to the extent that it concerns

the trial court’s denial on her motion for temporary spousal support.

                                        B. Spousal Support

       {¶9}    Wife next argues that the trial court should have ordered Husband to pay her more

spousal support, as the $150.00 per month spousal support award is inequitable due to the

disparity in the parties’ income. Specifically, Wife notes that Husband makes more money and

has a “comfortable” standard of living, whereas she is impoverished and “barely surviving on * *

* $733 a month, HEAP [assistance], and $189 a month in food stamps.” The trial court ordered

Husband to pay Wife $150.00 per month in spousal support for a total 73 months, beginning on

June 1, 2016, and concluding on July 1, 2022, unless the aggregate sum was paid sooner.

       {¶10} “This Court reviews a spousal support award under an abuse of discretion

standard.” Hirt v. Hirt, 9th Dist. Medina No. 03CA0110–M, 2004–Ohio–4318, ¶ 8. An abuse of

discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion

standard, a reviewing court may not simply substitute its own judgment for that of the trial court.

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). Moreover, “[t]he burden is on the

party challenging the award to show that the award is unreasonable, arbitrary, or unconscionable

in order for this Court to overturn the award.” Gregory v. Gregory, 9th Dist. Wayne No.

98CA0046, 2000 WL 877823, *4 (July 6, 2000).

       {¶11} R.C. 3105.18(B) provides that “[i]n divorce and legal separation proceedings, * *

* the court of common pleas may award reasonable spousal support to either party.” “In

determining whether spousal support is appropriate and reasonable,” the court shall consider the
                                                  5


14 factors listed in R.C. 3105.18(C)(1)(a)-(n). R.C. 3105.18(C)(1). Those factors include the

following:

       (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, 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.

R.C. 3105.18(C)(1)(a)-(n).
                                               6


       {¶12} A review of the record indicates that the magistrate’s decision fully addressed all

14 factors contained in R.C. 3105.18 prior to ordering Husband to pay spousal support to Wife in

the amount of $150.00 per month for 73 months. Specifically, the magistrate’s decision noted

that Husband “made considerably more money” than Wife during the course of the marriage,

although it “is unclear exactly what the parties were earning as of the de facto end date of the

marriage in 2007.” The magistrate noted that Husband’s income at the time of the final hearing

was $44,289.00, whereas Wife’s income amounted to $11,400.00 in disability and food stamps.

The magistrate further noted that Husband has worked for the same employer since 1984, is in

good physical, mental, and emotional condition, and “can continue to work and continue to earn

at the same wage[,]” whereas Wife has issues with her memory, “is currently disabled due to an

accident and receives a monthly disability check.” The magistrate also found that due to Wife’s

disability, she “cannot seek further education and training in order to obtain new employment at

this time.”

       {¶13} Moreover, the magistrate noted that Husband has retirement benefits through his

employer, whereas Wife does not have any retirement benefits. The magistrate noted that the

parties were married for approximately 18 years when they separated in 2007 and have no minor

children. The magistrate found that the parties maintained a comfortable standard of living while

they were married. The magistrate considered the tax consequences for each party resulting

from an award of spousal support and also stated that neither party testified about lost income

production capacity.

       {¶14} However, in justifying its “minimal” spousal support award, the magistrate noted

that Husband and Wife had been separated and living apart since February of 2007, nearly 10

years at the time of the final hearing. The magistrate also found that during the course of the
                                                   7


parties’ separation, Husband “continued to help [Wife] financially when he could. [Husband]

did not give [Wife] regular amounts of money or large amounts, but did indicate that he would

provide her with $50 or $100 in order to help her out.” The magistrate reasoned that a spousal

support award of $150.00 achieved the purpose of spousal support. The trial court subsequently

reviewed the transcript from the final hearing, found no defect on the face of the magistrate’s

decision, and adopted the magistrate’s decision.

       {¶15} After careful consideration, we cannot say that the trial court abused its discretion

when it ordered Husband to pay Wife a “minimal” spousal support award in the amount of

$150.00 per month. The trial court considered all of the factors contained in R.C. 3105.18(C)(1).

In doing so, the trial court highlighted the fact that although the parties did have a long-term

marriage, they were separated for nearly eight years at the time that Husband filed his complaint

for divorce. The trial court also highlighted the fact that each party established a new standard of

living during their separation and that Husband provided only minimal financial support to Wife

during this time. The court was authorized to give weight to the parties’ long separation

pursuant to the “standard of living” and “any other factor that the court finds to be relevant and

equitable” considerations of R.C. 3105.18(C)(1)(g) and R.C. 3105.18(C)(1)(n). See Lytle v.

Lytle, 2d Dist. Montgomery No. 19142, 2002 WL 1349695, *3 (June 21, 2002) (holding that the

trial court did not err by denying wife’s request for spousal support since wife supported herself

during a 16-year separation from her husband).

       {¶16} However, upon review of the record, it appears that the trial court erred in

calculating the duration of the parties’ marriage. The marriage, which lasted from October 30,

1987, until February 1, 2007, totals 19 years and 3 months, or 231 months. One-third of 231

months does not equate to 73 months as the trial court found. Accordingly, the trial court erred
                                                8


by awarding Wife spousal support for 73 months. Upon remand, the trial court is instructed to

issue a nunc pro tunc entry correcting the duration of Wife’s spousal support award.

       {¶17} Therefore, we conclude that the trial court did not err by imposing a spousal

support award in the amount of $150.00 per month. However, the trial court did err by ordering

Husband to pay spousal support to Wife for only 73 months.

                                   C. Attorney’s Fees & Costs

       {¶18} Lastly, Wife argues that the trial court should have ordered Husband to pay her

attorney’s fees and costs. Attorney’s fees in connection with a divorce may be awarded under

R.C. 3105.73(A), which provides:

       In an action for divorce, dissolution, legal separation, or annulment of marriage or
       an appeal of that action, a court may award all or part of reasonable attorney’s
       fees and litigation expenses to either party if the court finds the award equitable.
       In determining whether an award is equitable, the court may consider the parties’
       marital assets and income, any award of temporary spousal support, the conduct
       of the parties, and any other relevant factors the court deems appropriate.

“Because a court addresses an award of attorney fees through equitable considerations, a trial

court properly can consider the entire spectrum of a party’s actions, so long as those actions

impinge upon the course of the litigation.” Padgett v. Padgett, 10th Dist. Franklin No. 08AP–

269, 2008–Ohio–6815, ¶ 17. A trial court has broad discretion in considering an award of

attorney fees, and an award will only be reversed upon an abuse of the trial court’s discretion.

Guziak v. Guziak, 80 Ohio App.3d 805, 816 (9th Dist.1992).

       {¶19} However, upon review of the record, we determine that this Court is precluded

from addressing Wife’s argument concerning attorney’s fees and court costs. “Civ.R. 53 governs

proceedings before a magistrate and sets forth the trial court’s duties in adopting or rejecting a

magistrate’s rulings.” Rosen v. Chesler, 9th Dist. Lorain No. 08CA009419, 2009-Ohio-3163, ¶

21. Civ.R. 53(D)(3)(b)(iv) provides that, except for a claim of plain error, a party waives the
                                                 9


right to assign error on appeal with respect to the trial court’s adoption of any factual finding or

legal conclusion “unless the party has objected to that finding or conclusion as required by Civ.

R. 53(D)(3)(b).”    Such objections must be specific and all grounds must be stated with

particularity. Civ. R. 53(D)(3)(b)(ii).

       {¶20} Here, although Wife filed timely objections to the magistrate’s decision, she did

not object on the basis that the trial court erroneously failed to award her attorney’s fees and

court costs, and she has not argued plain error on appeal. As this Court has consistently held,

“when a party fails to properly object to a magistrate’s decision in accordance with Civ.R.

53(D)(3), the party has forfeited the right to assign those issues as error on appeal.” Adams v.

Adams, 9th Dist. Wayne No. 13CA0022, 2014–Ohio–1327, ¶ 6, citing Kiewel v. Kiewel, 9th

Dist. Medina No. 09CA0075–M, 2010–Ohio–2945, ¶ 17. Consequently, Wife has forfeited this

issue on appeal.

       {¶21} Wife’s first assignment of error is sustained in part and overruled in part.

                                      Assignment of Error II

       The lower court erred in determining per ORC 3105.171(A)(2) “during
       marriage” to be from October 30, 1987 to February 1, 2007, no equitable
       division of marital property per ORC 3105.171 occurred. Also no division of
       marital property acquired by Mr. or Mrs. Drouhard from October 30, 1987
       to February 1, 2007 was ordered. Spousal support per ORC 3105.18 as
       imputed by the duration determination is not adequately set nor discussed.
       All stemming from an abuse of discretion. [Sic.]

       {¶22} In her second assignment of error, Wife contends that the trial court erred when it

established the de facto marriage termination date of February 1, 2007. She argues that the

marriage terminated either on December 30, 2012, when the parties last filed a joint tax return, or

on the date of the final hearing in February 2016. Additionally, Wife disputes the trial court’s

division of the parties’ marital property. We disagree with both arguments.
                                               10


                              A. Duration of the Parties’ Marriage

       {¶23} “[T]he decision to use the final hearing date or another date when valuing

property in a divorce action is a discretionary matter. The decision must reflect an unreasonable,

arbitrary or unconscionable attitude before this [C]ourt will reverse.” Budd v. Budd, 9th Dist.

Summit No. 25469, 2011-Ohio-565, ¶ 8, quoting Schrader v. Schrader, 9th Dist. Medina No.

2664-M, 1998 WL 46757, *3 (Jan. 21, 1998); Berish v. Berish, 69 Ohio St.2d 318, 319-320

(1982) (applying an abuse of discretion standard when establishing the duration of the marriage

for purposes of valuation).

       {¶24} “[T]he trial court must determine the duration of the marriage prior to dividing

marital assets.” Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-Ohio-3454, ¶ 17, citing

Alexander v. Alexander, 10th Dist. Franklin No. 09AP-262, 2009-Ohio-5856, ¶ 37; R.C.

3105.171(F)(1). Under R.C. 3105.171(A)(2)(a), the phrase “during the marriage” is defined as

“the period of time from the date of the marriage through the date of the final hearing in an

action for divorce[.]” However, if the trial court determines that using those dates would be

inequitable, it “may select dates that it considers equitable in determining marital property.”

R.C. 3105.171(A)(2)(b). Nevertheless, “we have previously noted that the statute ‘creates a

presumption that the proper date for termination of marriage is the date of the final divorce

hearing.’” Budd at ¶ 8, quoting Bowen v. Bowen, 132 Ohio App.3d 616, 630 (9th Dist.1999),

quoting Kohler v. Kohler, 9th Dist. Lorain No. 96CA006313, 1996 WL 455850, *5 (Aug. 14,

1996). A trial court should only impose a de facto termination where the evidence “clearly and

bilaterally shows that it is appropriate based on the totality of the circumstances.” Boggs v.

Boggs, 5th Dist. Delaware No. 07 CAF 02 0014, 2008-Ohio-1411, ¶ 66. “Generally, trial courts

use a de facto termination of marriage date when the parties separate, make no attempt at
                                               11


reconciliation, continually maintain separate residences, separate business activities and/or

separate bank accounts.” Eddy v. Eddy, 4th Dist. Washington No. 01CA20, 2002-Ohio-4345, ¶

24, citing Gullia v. Gullia, 93 Ohio App.3d 653, 666 (8th Dist.1994).

       {¶25} The magistrate presided over the final hearing, where both parties testified and

presented evidence. When determining whether a de facto termination of marriage date was

equitable in this case, the magistrate explicitly considered the several non-dispositive factors

articulated in Dill v. Dill, 3d Dist. Logan No. 8-08-02, 2008-Ohio-5310, ¶ 11. Specifically, the

magistrate found that the parties separated in February 2007 when Wife left the marital

residence. The magistrate noted that the parties “separated on less than friendly terms.” The

magistrate also noted that Wife cohabited “with two other men since leaving the marital

residence in February 2007” and that the parties were not intimately involved with each other

during the separation. The magistrate found that neither party ever attempted to reconcile and

that the parties maintained separate residences during the separation, with Husband remaining in

the marital residence and Wife living with other people. The magistrate determined that the

parties “did not live as husband and wife during the separation” and “did not attend social

functions or vacation together.” Lastly, the magistrate found that both parties clearly “believed

that the marriage ended prior to the final hearing.” The trial court reviewed the transcript from

the final hearing, found no defect on the face of the magistrate’s decision, and adopted the

magistrate’s decision.

       {¶26} Under the totality of the circumstances of this case, we cannot say that the trial

court abused its discretion when it used February 1, 2007, as the termination of marriage date.

The evidence in this case clearly and bilaterally demonstrates that a de facto termination of

marriage date is appropriate, especially considering Husband and Wife have been separated since
                                                12


2007, have made no effort to reconcile, and maintain their own residences. Although Wife

argues on appeal that she and Husband were still financially intertwined during their separation,

the record indicates that the trial court contemplated the parties’ financial relationship prior to

selecting February 1, 2007, as the de facto termination of marriage date.

                                  B. Division of Marital Property

       {¶27} Finally, having determined that the trial court did not err by using February 1,

2007, as the de facto termination of marriage date, we likewise reject Wife’s terse argument

concerning the trial court’s purportedly unequal division of the parties’ marital property. In her

brief, Wife claims that “[t]he entire division of property in this case [is] based upon an

inappropriate de facto duration[.]”    Thus, Wife argues that since the trial court’s de facto

termination of marriage date was erroneous, any division of marital property that uses February

1, 2007, as the end of marriage date is also improper. However, as noted earlier, we find no error

with the trial court selecting February 1, 2007, as the de facto termination of marriage date.

Accordingly, Wife’s argument concerning the division of marital property, which is entirely

derivative of her argument concerning the length of the parties’ marriage, is without merit.

       {¶28} Accordingly, Wife’s second assignment of error is overruled.

                                               III.

       {¶29} Wife’s first assignment of error is sustained in part and overruled in part. Wife’s

second assignment of error is overruled. The judgment of the Wayne County Court of Common

Pleas, Domestic Relations Division, is affirmed in part, reversed in part, and the matter is

remanded for further proceedings consistent with this opinion.

                                                                       Judgment affirmed in part,
                                                                                reversed in part,
                                                                            and cause remanded.
                                                13




       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 Wayne, 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 equally to both parties.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT




CALLAHAN, J.
CONCURS.

HENSAL, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶30} I agree with the majority’s determination that this case must be remanded on the

issue of spousal support, but I disagree with its instruction to the trial court. Although the

magistrate concluded that the duration of wife’s spousal support should be one-third the length of

the marriage, the trial court did not adopt his findings of fact and conclusions of law.
                                                14


Accordingly, we cannot impute the magistrate’s “one-third” determination to the trial court, as

the majority has done.

       {¶31} The trial court incorrectly wrote that the period from October 30, 1987, through

February 1, 2007, is eighteen years and two months. In light of that miscalculation and the lack

of other information in the decree for why the trial court ordered 73 months of spousal support, it

is not possible to determine whether the court properly exercised its discretion. I, therefore,

would remand this matter to the trial court so that it may, if it deems appropriate to a resolution

of its determination of amount or duration of spousal support, correct its calculation regarding

the length of the marriage and make any adjustment to the spousal support award that it deems

appropriate, or indicate that the magistrate’s findings or record were dispositive as to the amount

or duration of spousal support ordered.

       {¶32} I disagree with the majority’s resolution of the second assignment of error

because it does not address all of Wife’s arguments that the trial court did not equally divide the

parties’ marital property. We should not omit consideration, without explanation for doing so,

Wife’s argument that the division of marital personal property was not even or the argument she

makes regarding Husband’s retirement account. I, therefore, respectfully concur in judgment

only as to Wife’s first assignment of error and dissent as to her second assignment of error.


APPEARANCES:

L. RAY JONES, Attorney at Law, for Appellant.

R. J. HELMUTH, Attorney at Law, for Appellee.
