[Cite as Hutta v. Hutta, 2011-Ohio-2762.]


                  [Please see nunc pro tunc opinion at 2011-Ohio-3041.]

                                       COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
J. LAWRENCE HUTTA                             :   Julie A. Edwards, P.J.
                                              :   W. Scott Gwin, J.
                         Plaintiff-Appellee   :   William B. Hoffman, J.
                                              :
-vs-                                          :   Case No. 10CAF040031
                                              :
                                              :
KELLEY L. HUTTA                               :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Civil Appeal from Delaware County
                                                   Court of Common Pleas, Domestic
                                                   Relations Division, Case No.
                                                   04DRA070312

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            June 6, 2011


APPEARANCES:


For Plaintiff-Appellee                             For Defendant-Appellant


GERALD J. BABBITT                                  WOLINETZ LAW OFFICE, LLC
503 S. Front Street, Suite 200                     Barry H. Wolinetz
Columbus, Ohio 43215                               Kelly M. Gwin
                                                   250 Civic Center Drive, Suite 100
                                                   Columbus, Ohio 43215
[Cite as Hutta v. Hutta, 2011-Ohio-2762.]


Hoffman, J.

        {¶1}     Defendant-appellant Kelley Hutta appeals a judgment of the Delaware

County Common Pleas Court, Domestic Relations Division, ordering appellee J.

Lawrence Hutta to pay her spousal support in the amount of $12,000.00 per month up

to April 1, 2017.

                                   STATEMENT OF FACTS AND CASE

        {¶2}     Appellant and Appellee were married on June 11, 1983, and three

daughters were born as issue of their marriage. Two of the children are now

emancipated.

        {¶3}     The parties enjoyed a luxurious standard of living during the marriage due

to Appellee's successful orthodontic practice. The parties owned a large custom-built

home in a golf course community and a $5 million dollar Florida condominium. They

privately educated their children. They lavished expensive gifts, allowances and

automobiles upon family members. Appellant had the primary responsibilities of raising

the three children and maintaining the household.

        {¶4}     Appellee filed for divorce on July 12, 2004, after 21 years of marriage.

Appellee is self-employed through his orthodontic practice, J. Lawrence Hutta D.D.S.,

Inc. The trial court established that his salary is $258,000.00 per year for purposes of

determining spousal support. Appellant, who has an associate's degree, was a career

homemaker for a majority of the marriage. The trial court estimated she is currently able

to earn a salary of $20,000.00 to $25,000.00 per year. At the time of the divorce, both

parties were in their late forties and in good health.
Delaware County App. Case No. 10CAF040031                                                  3


       {¶5}   After nearly two years of litigation, the parties reached an agreement on all

issues except spousal support and attorney fees, which were submitted to the

magistrate for determination. The magistrate concluded Appellant was entitled to

spousal support in the amount of $9,708.00 per month for eight years.

       {¶6}   Appellant filed an appeal.     On July 28, 2008, this Court reversed and

remanded, finding the trial court failed to consider the totality of the circumstances

regarding spousal support, including Appellee’s income after the property division, the

parties' standard of living, the long duration of the marriage, the disparate income and

earning power of the parties, and Appellant’s responsibility for caring for the children.

We further found the trial court abused its discretion in limiting spousal support to a

duration of eight years without a stated justification, and in light of evidence that

reflected an unlikelihood Appellant could develop a meaningful career outside the home

as of the time support would terminate, and that she would be unable to access

retirement accounts for at least one and a half years to five years after termination of

support. Hutta v. Hutta, 177 Ohio App.3d 414, 894 N.E.2d 1282, 2008 -Ohio- 3756.

       {¶7}   Upon remand, the trial court heard testimony and the parties entered into

certain stipulations, to wit: “the ‘error date’ for purposes of this remand is to be April 4,

2006; the stipulated vocational evaluation of the wife presented at the time of the

original trial (indicating an income potential of up to $25,000) is to be used by the court;

and the daily treasury 10 year rate, as of April 4, 2006, is 5.06%.”

       {¶8}   After remand, the trial court ordered Appellee to pay Appellant spousal

support in the amount of $9,708.00 per month from April 4, 2006, through April 1, 2009,
Delaware County App. Case No. 10CAF040031                                             4


and $12,000.00 per month from April 1, 2009, through April 1, 2017. Appellant assigns

four errors on appeal:

      {¶9}   “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT FAILED TO PROPERLY CONSIDER THE PARTIES’

INCOMES FROM ALL SOURCES PURSUANT TO THIS COURT’S PREVIOUS

OPINION AND PURSUANT TO R.C. 3105.18(C)(1).

      {¶10} “II. THE TRIAL COURT ERRED WHEN IT IMPUTED WIFE’S PROPERTY

SETTLEMENT AS CASH INCOME TO HER.

      {¶11} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

REGARDING ITS DETERMINATION OF THE AMOUNT OF SPOUSAL SUPPORT

PAYMENTS.

      {¶12} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

REGARDING ITS DETERMINATION OF THE DURATION OF SPOUSAL SUPPORT

PAYMENTS.”

                                               I

      {¶13} In her first assignment of error, Appellant argues the magistrate failed to

consider all of Appellee’s income upon remand. Appellant argues it is unclear what

amount of income the court actually attributed to Appellee.

      {¶14} Although not requested, the magistrate issued findings of fact. While it is

not clear the exact dollar amount of income the magistrate attributed to Appellee, the

magistrate noted, in looking at the totality of the award and considering all sources of
Delaware County App. Case No. 10CAF040031                                               5


income of the parties, the issue was not as simple as including a salary and K11 income

from Appellee’s company as suggested by Appellant. Finding of Fact 20. Therefore, it

is apparent from the findings of the magistrate all sources of income were considered in

fashioning an award, and the trial court found the magistrate considered the totality of

the parties’ income from all sources. The trial court also specifically noted Appellant

failed to request specific findings of fact and conclusions of law.

       {¶15} If a magistrate has not prepared findings of fact or has prepared findings

of fact that are insufficient, the burden is on the party objecting to request findings of

fact from the magistrate pursuant to Civ. R. 52 and Civ. R. 53(E)(2).            Rush v.

Schlagetter (April 15, 1997), Ross App. No. 96CA2215, unreported.           By failing to

request more specific findings of fact regarding what sources of income the magistrate

considered, Appellant has waived any claim the magistrate did not consider all sources

of income as recited in the findings of fact and the opinion of the trial judge overruling

Appellant’s objections.

       {¶16} Appellant next argues the court erred in considering Appellant’s ability to

earn investment income of $111,500.00 from property she received in the parties’

property settlement, while not similarly attributing income to Appellee from property he

received, but has chosen not to use to increase income, such as a condominium in

Florida and certain liquid cash assets.

       {¶17} Again, in the absence of a request for more specific findings of fact and

conclusions of law, we cannot determine what the court considered regarding the
1
 “K–1 income” refers to ordinary income reported on IRS Schedule K, Line 1, of Form
1120S on the income tax return of an S Corporation. For tax years 2000, 2001, 2002,
2003 and 2004, Appellee reported K–1 income from the orthodontic practice as
$549,723; $442,740; $321,271; $337,755; and $401,844, respectively.
Delaware County App. Case No. 10CAF040031                                                6


parties’ ability to earn investment income from property received in the settlement, or its

impact on the court’s final spousal support award. The magistrate recites he considered

each party’s arguments and evidence regarding the other party’s choice of investments

and utilization of the assets received in the property settlement. Finding of Fact 23.

The magistrate further noted he considered the ability of Appellee to continue to earn

active income from his property as well as passive income from the fruits of his labor,

and considered Appellant’s ability to amass assets both now and in the future. Finding

of Fact 24. The court found the magistrate considered the parties’ asset and debt

division both in type and amount. In the absence of a request for more specific findings

of fact and conclusions of law, any claimed error in the specific investment income

considered by the court is waived.

      {¶18} The first assignment of error is overruled.

                                                II

      {¶19} In her second assignment of error, Appellant argues the court erred in

including cash payments she received as part of her property settlement as income for

purposes of spousal support.

      {¶20} The magistrate found in Finding of Fact 9:

      {¶21} “9. Kelly Hutta also testified. Her testimony also centered around each

one of the factors in O.R.C. 3105.18. She testified regarding her budget, and indicated

that that budget accurately reflected their standard of living in 2006. The Court order

did not meet her needs. She related her testimony in the circumstances of the property

settlement in that the numbers that were used did not reflect a lump sum award; but that

most of the comes (sic) through on a periodic basis and will continue in that fashion. At
Delaware County App. Case No. 10CAF040031                                                7


the time of the pending action he indicated that she required $15,878 per month to run

the household – for the necessaries. Further testimony was elicited that this amount did

not include monies that were already being paid by Mr. Hutta. She testified that the

assumed standard of living of the parties was such that there were really no budgetary

restraints during the course of the marriage and most of the bills were all paid off when

received. The temporary orders indicated that husband was to pay $11,000 per month

– plus the monthly mortgage and the other house and car related bills. She admits that

he did do so during the pendency of the case. On cross examination she testified that

she is receiving the $18,750 monthly nontaxable property settlement and that this

coupled with the child support and the spousal support gives a cash income of

approximately $39,000 per month.         However, back on re-direct examination she

indicated that a substantial amount of this property settlement is designed for just that –

a property settlement – and was not required or anticipated to be utilized for specific

monthly needs. This was for investment and to have assets.”

       {¶22} On objection by Appellant, the trial court modified this finding of fact:

       {¶23} “However, from the review of the testimony as cited by Defendant herself,

it is clear from the record that the Magistrate properly considered, but failed to properly

indicate the wife’s projected earnings (income) from her other property settlement

provision (Tr Pg 195 line 10 et seq. and Tr pg 196 line 3 et seq). The investment

income properly attributed to the wife totals an additional $111,500 per year to her plus

the other categories of monthly cash flow as stated by the magistrate – adding in the

approximate $10,000 per month to the mathematical ‘error.’ The Court finds that the

finding should be modified as underlined to recite that she is receiving the $18,750
Delaware County App. Case No. 10CAF040031                                               8

monthly non-taxable property settlement and approximately $10,000 per month of

attributable investment income from other aspects of her property settlement; that

this coupled with the child support and the spousal support gives a cash flow of

approximately $39,000 per month. …’ (par 9. Pg 3.) (emphasis added by the court for

clarity.)”

        {¶24} The record does not support Appellant’s claim the court used her property

settlement payments as income in the calculation of spousal support. It is clear from

the entry the court considered this property settlement payment for the purposes of

analyzing the money available to meet Appellant’s claimed monthly budgetary needs.

We note such consideration is specifically recognized as a factor in determining whether

spousal support is appropriate and reasonable in R.C. 3105.18(C)(1)(i). Further, it is

clear the court considered Appellant’s argument that this property settlement payment

was for investment and not for meeting monthly living expenses. We find, while the

standard of living of the parties during the marriage was considered, it was not the

factor given paramount importance in the determination of spousal support. The trial

court seemed to be saying that spousal support and investment income should be

sufficient to cover the appellant’s basic living expenses and, if she wants to continue to

live a luxurious lifestyle, she has the choice to dip into her property division proceeds.

There is no legal requirement that incomes be equalized or that the lifestyle of the

marriage be maintained at the same level by both parties after the divorce.

        {¶25} We cannot conclude the trial court considered Appellant’s installment

payments of marital property to be income to her for purposes of meeting her

reasonable monthly expenses.
Delaware County App. Case No. 10CAF040031                                                   9


       {¶26} The second assignment of error is overruled.

                                                 III

       {¶27} In her third assignment of error, Appellant restates her argument the trial

court did not properly consider the parties’ incomes from all sources. For the reasons

stated in Assignments of Error One and Two, supra, this claim is without merit.

       {¶28} Appellant next argues the trial court erred in awarding spousal support in

the amount of $9,708.00 per month from April 4, 2006, through April 1, 2009, rather

than increasing the amount to $12,000.00 retroactive to April, 2006. We disagree.

       {¶29} In our first opinion, we found the trial court abused its discretion in the first

spousal support award:

       {¶30} “By refusing to consider the significant income that appellee derived from

property obtained pursuant to the property settlement, we find that the trial court erred

as a matter of law. We also find that the trial court abused its discretion under the

totality of evidence presented, which included the parties' standard of living, the long

duration of the marriage, the disparate income and earning power of the parties, and

appellant's responsibility for caring for the children.” Hutta, supra, ¶36.

       {¶31} The magistrate set forth the following reasoning in support of prospective

application of spousal support:

       {¶32} “Because of the remand, and giving consideration of the parties each

obeying the current order, there should be an adjustment, and the crafting of a creative

order (less now-but longer) to attempt to eliminate any inequity to the parties as a result

of retroactivity and the required collection of any arrears through the CSEA. The easy

solution would be to merely state the order and duration, and allow the parties to hash
Delaware County App. Case No. 10CAF040031                                               10


out payment arrangements. That is not fair, appropriate, or reasonable.” Finding of fact

25.

       {¶33} While we cannot determine what portion of the prospective award the trial

court considered to be an adjustment for arrearages and what portion, if any, was for

interest on the arrearages, we find the magistrate’s (trial court’s) proffered reason for

not making the increased spousal support order retroactive to April 2006, to be

reasonable and does not constitute an abuse of discretion despite the parties’

stipulation April 2006 was the “error date.”

       {¶34} Appellant next argues the court abused its discretion in awarding only

$12,000 in spousal support where her budgetary needs to maintain the standard of

living the parties established during the marriage were much higher. We disagree. The

trial court, on remand, ordered that the original monthly spousal support order of $9,708

be in effect from April 4, 2006 through April 3, 2009, and made the new monthly spousal

support of $12,000 effective from April 4, 2009 through April 3, 2017. The trial court did

this in order “to attempt to eliminate any inequity to the parties as a result of

retroactivity. . .” The new spousal support order is also thirty-six months longer than the

previous order.    We note the new spousal support order after remand serves to

increase the overall award by approximately $570,000. We find the trial court did not

abuse its discretion in determining the amount of spousal support.

                                               IV

       {¶35} In her final assignment of error, Appellant argues the court erred in limiting

spousal support to a duration of 11 years. In our first opinion, this Court held:
Delaware County App. Case No. 10CAF040031                                             11


       {¶36} “Appellant further challenges the trial court's decision to award spousal

support for only eight years, which coincides with the parties' youngest child's reaching

the age of 22. Appellant contends that the trial court erred in not awarding spousal

support for an indefinite period of time. Appellant relies upon Kunkle v. Kunkle, (1990)

51 Ohio St.3d 64, 554 N.E.2d 83, for the proposition that indefinite spousal support may

be appropriate under the circumstances of this case (i.e., marriage of long duration, a

homemaker spouse with little opportunity to seek meaningful employment outside the

home).

       {¶37} “Appellee argues that there is no statutory requirement for a trial court to

make an order of spousal support indefinite in cases involving marriages of long

duration, although a trial court may do so under reasonable circumstances.

       {¶38} “ In Kunkle, 51 Ohio St.3d 64, 554 N.E.2d 83, the Ohio Supreme Court

held, at paragraph one of the syllabus: ‘Except in cases involving a marriage of long

duration, parties of advanced age or a homemaker-spouse with little opportunity to

develop meaningful employment outside the home, where a payee spouse has the

resources, ability and potential to be self-supporting, an award of sustenance alimony

should provide for the termination of the award, within a reasonable time and upon a

date certain, in order to place a definitive limit upon the parties' rights and

responsibilities.’

       {¶39} “We agree with appellee's contention that Kunkle should not be read to

mandate permanent spousal support in marriages of long duration. See also Sears v.

Sears, Stark App. No. 2001CA00368, 2002-Ohio-4069, 2002 WL 1821954 (affirming
Delaware County App. Case No. 10CAF040031                                             12


denial of permanent spousal support in case involving 34-year marriage with both

spouses in their mid-50’s).

      {¶40} “However, under the financial facts and circumstances of this case, and

being mindful of the purpose of spousal support, we are persuaded that the trial court

abused its discretion in limiting spousal support duration to eight years without any

stated justification. At the time of divorce, appellant was age 49. Thus, spousal support

would terminate at age 57. The evidence reflected an unlikelihood that appellant could

develop a meaningful career outside the home, and she would be unable to access

retirement accounts until age 59 1/2 or Social Security benefits at age 62. Thus, there

exists a gap of at least one and a half years to five years when appellant would be

without support maintenance before she reaches retirement age. Appellee certainly has

the resources and ability to provide continued support until appellant could achieve

retirement age. The record simply does not support the trial court's determination that

eight years was reasonable and nor does it provide insight to support the trial court's

reasoning in this regard.” Hutta, supra, ¶37-41.

      {¶41} On remand, the court continued spousal support for an additional three

years, at which time Appellant would be 60 years of age and able to access retirement

accounts. The magistrate found:

      {¶42} “The Court of Appeals discussed the age of 59 ½ and 62 as other

termination dates.    Kelly (sic) Hutta will be eligible for retirement distributions at

approximately September 25, 2016, and eligible for Social Security in March, 2019.”

      {¶43} The magistrate concluded that termination at the age of 59 ½ was not

appropriate, while neither is termination at the age of 62 or 65. Finding of Fact 24. The
Delaware County App. Case No. 10CAF040031                                             13


magistrate found, from all the circumstances, by the time Appellant reaches the age of

60 she will have had a sufficient opportunity to have a reasonable retirement strategy in

place, including a six month adjustment period as to accessing her own retirement

sources. Id. We find no abuse of discretion in the eleven year duration of spousal

support on remand.

      {¶44} The fourth assignment of error is overruled.
Delaware County App. Case No. 10CAF040031                                               14


       {¶45} The judgment of the Delaware County Common Pleas Court regarding the

non-retroactivity of spousal support is reversed and this matter is remanded to the trial

court to determine the amount of spousal support from April 4, 2006. The trial court

shall also calculate the arrearage due, with consideration of the stipulated interest rate,

and make an appropriate order regarding payment, holding a hearing if necessary. The

judgment is affirmed in all other respects.

By: Hoffman, J.

Gwin, J. concurs

Edwards, P.J., dissents

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



                                                   ______________________________
                                                   HON. JULIE A. EDWARDS



                                                    s/ W. Scott Gwin ________________
                                                    HON. W. SCOTT GWIN
Delaware County App. Case No. 10CAF040031                                                  15


EDWARDS, J., CONCURRING IN PART, DISSENTING IN PART OPINION

       {¶46} I concur with the majority as to its analysis and disposition of the first,

second and fourth assignments of error but respectfully dissent from its analysis and

disposition of the third assignment of error.

       {¶47} I find it was an abuse of discretion for the trial court not to make the

increase in spousal support retroactive to April 4, 2006, the stipulated error date. It is

clear that we previously determined that the monthly spousal support as originally

ordered was too low. Therefore, any increase in that original spousal support should be

retroactive to the date the original order began and interest should be calculated upon

arrearages due.      The trial court’s rationale for not making the spousal support

retroactive is that it is “not fair, appropriate, or reasonable” to “allow the parties to hash

out payment arrangements.” I find that rationale non-persuasive. Courts make orders

regarding arrearage payments all the time.

       {¶48} I would remand this matter to the trial court to make the increase in

spousal support retroactive to April 4, 2006, and to make orders regarding the payment

of arrearages plus interest on that amount.

       {¶49} It is also clear to me that the trial court did not intend to order spousal

support to be $12,000.00 per month from April 4, 2006, because that amount was not

made effective by the trial court until April 1, 2009. Therefore, on remand I would

expect the trial court to calculate a figure somewhat less than $12,000.00 per month to

be effective April 4, 2006.

       {¶50} The majority found that the overall increase in spousal support after

remand was approximately $570,000.00 and was not an abuse of discretion.                     I
Delaware County App. Case No. 10CAF040031                                                16


disagree. Our remand to the trial court from the first appeal sent a clear message to the

trial court that spousal support was too low and was of insufficient duration.         The

duration matter was adequately addressed on remand. But, the increase in spousal

support calculates to $1,666.91 per month. ($9,708.00 x 36 months = $349,488.00 plus

$12,000.00 x 96 months = $1,152,000.00 for total spousal support of $1,501,488.00.

$1,501,488.00 ÷ 132 months = $11,374.91 per month.             $11,374.91 - $9,708.00 =

$1,666.91).

       {¶51} In our prior opinion, we found, “By refusing to consider the significant

income appellee derived from property obtained pursuant to the property settlement, we

find the trial court erred as a matter of law. We also find the trial court abused its

discretion under the totality of evidence presented which included the parties’ standard

of living, the long duration of the marriage, the disparate income and earning power of

the parties, and appellant’s responsibility for caring for the children.” Hutta v. Hutta 177

Ohio App.3d 414, 2008-Ohio-3756, 894 N.E.2d 1282, at ¶ 36.

       {¶52}     Appellee’s salary is $258,000.00 per year, and the initial spousal

support of $9,708.00 per month was calculated using that amount. Appellee’s net K-1

income per year is approximately $280,000.00 per year. The K-1 income does not

include rental property income. I would find it to be an abuse of discretion for the trial

court to increase spousal support by $1,667.00 per month when considering, at a

minimum, additional income of appellee of $280,000.00 per year.           Considering the

additional factor of the tax consequences of spousal support (taxable to appellant,

deductible to appellee), that $1,667.00 shrinks to approximately $1,000.00 per month
Delaware County App. Case No. 10CAF040031                                              17


which will be paid by appellee and approximately $1,200.00 per month which will be

received by appellant.

      {¶53} The trial court is under no obligation to income-equalize the parties, and

the appellant is receiving her property division very soon after the divorce. She didn’t

have to wait until the appellee sold his business or sold real estate. But even with those

considerations in mind, based on the remand language of the prior appeal, I would find

the trial court abused its discretion regarding the amount of spousal support.




                              s/ Julie A. Edwards _____________

                                    Judge Julie A. Edwards
[Cite as Hutta v. Hutta, 2011-Ohio-2762.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


J. LAWRENCE HUTTA                                :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :        JUDGMENT ENTRY
                                                 :
KELLEY L. HUTTA                                  :
                                                 :
                        Defendant-Appellant      :        CASE NO. 10CAF040031




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

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

Costs assessed to Appellant.




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


                                                     _________________________________
                                                     HON. JULIE A. EDWARDS


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