[Cite as Murphy v. Murphy, 2016-Ohio-7504.]


                                     COURT OF APPEALS
                                    STARK COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


STEPHEN MURPHY                                :   JUDGES:
                                              :   Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellee                  :   Hon. William B. Hoffman, J.
                                              :   Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
PATRICIA MURPHY                               :   Case No. 2016CA00055
                                              :
        Defendant - Appellant                 :   OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Stark County Court
                                                  of Common Pleas, Family Court
                                                  Division, Case No. 2015 DR 00057




JUDGMENT:                                         Affirmed




DATE OF JUDGMENT:                                 October 24, 2016




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JOHN E. MYERS                                     HOLLY DAVIES
101 Central Plaza South                           Chase Tower
200 Chase Tower                                   101 Central Plaza South
Canton, Ohio 44702                                Canton, Ohio 44702
Stark County, Case No. 2016CA00055                                                       2

Baldwin, J.

      {¶1}    Defendant-appellant Patricia Murphy appeals from the March 11, 2016

Decree of Divorce issued by the Stark County Court of Common Pleas, Family Court

Relations Division.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellee Stephen W. Murphy III and appellant Patricia Murphy were

married on July 1, 1989. On January 22, 2015, appellee filed a complaint for divorce

against appellant. At the time, the parties’ two children born as issue of the marriage

were emancipated. No answer or counterclaim was filed by appellant. Subsequently, an

evidentiary hearing before a Magistrate was held on October 7, 2015. At the hearing, the

parties stipulated to all matters except whether or not any spousal support should be

awarded to appellee and the length of the marriage.

      {¶3}    At the hearing, appellee, whose date of birth is June 5, 1952, testified that

he separated from appellant on approximately July 1, 1998. He testified that, during the

marriage, he was employed by the Community Health Center and, starting in 1997, by

Oriana House where is employed as a chemical dependency counselor. After separating

from his wife in 1998, appellee went to college and graduated with an associate’s degree

in technology. Appellee’s W-2 form for 2014, which was admitted as an exhibit, shows

that his gross earnings for 2014 were $36,403.15. After health and dental insurance costs

were deducted, appellee’s reported W-2 wages were $31,742.11. Appellee testified that

out of such sum, $1,968.01 was deducted for Social Security, $4,625.28 was deducted

for federal withholding and $460.26 was deducted for Medicare.
Stark County, Case No. 2016CA00055                                                        3


      {¶4}   Appellee testified that he paid around $600.00 a month for rent, $90.00 a

month for electric, $125.00 a month for heat, $154.68 a month for cable, internet and

phone, and approximately $250.00 a month for groceries. He also testified that he spent

$10.00 a month on restaurants. Appellee has two vehicle loans that are in his name only.

He testified that he owed approximately $3,000.00 on a 2000 Volkswagen Bug and

approximately $4,000.00 on a 2006 Town and Country van. While the monthly payments

on the loans are approximately $400.00 a month, appellee also spends approximately

$20.00 a month on vehicle maintenance and $240.00 a month on gasoline. Appellee

further testified that he spends $25.00 a month each on haircuts and dry cleaning, a little

over $500.00 a month on auto and life insurance, $10.00 to $12.00 a month for

prescriptions, $25.00 a month for pet expenses, $15.00 a month additional rent to have

a cat, and $68.00 a month on a personal loan.

      {¶5}   Appellee testified that he paid for college using student loans and that, prior

to filing for divorce, he had filed bankruptcy but was unable to discharge the loans, the

approximate balance of which was $27,000.00. Appellee was unable to make any

payments on the student loans. When asked his average monthly expenditures, appellee

testified that they were around $2,616.97 and that he was living paycheck to paycheck.

To make ends meet, appellee has taken out payday loans, donated plasma a few times,

and borrowed $1,200.00 from a friend. He testified that he was not saving for retirement

because he was unable to do so. Appellee asked for spousal support from the date of

marriage to the time of the hearing.

      {¶6}   On cross-examination, appellee testified that he and appellant had been

living separately since they separated in 1998 and that each paid his/her own bills.
Stark County, Case No. 2016CA00055                                                        4


According to appellee, the parties’ two children, who were minors at the time of their

separation, had been living with appellant since the parties’ separation and appellant had

primarily cared for them since then, although appellee kept the children on his health

insurance. Appellee testified that he believed that the children were still on his insurance

as of the time of the hearing. Appellee testified that he lived with his significant other,

Wanda Barker, and that his expenses were for two people.

       {¶7}   Appellee’s unsecured debts were discharged in a Chapter 7 individual

bankruptcy in 2012. Appellee testified that he had a premarital annuity in the amount of

$12,609.03, but no other retirement account and that, three and a half years earlier, he

had been diagnosed with Bell’s Palsy. The Bell’s Palsy did not prevent appellee from

working at Oriana House.

       {¶8}   At the hearing, appellant, who was born on March 30, 1961, testified that

she lived with her son who did not pay rent to her. She testified that she was currently

employed by Todd Associates Inc. in commercial marketing. According to appellant, she

started working there in 1987, left in 1994 and then returned in 2001. She testified that

the children were on her hospitalization and that her income was approximately

$87,000.00 a year. Appellant testified that since they separated on July 1, 1998, she and

appellant had maintained separate households and finances.

       {¶9}   When asked her income at the time of her marriage in 1998, appellant

testified that it was approximately $50,000.00 a year. She testified that her income had

increased due to hard work and promotions and that she had a high school diploma.

Appellant’s monthly expenses included $404.00 a month for health insurance, $297.00 a

month for a car loan, and $985.00 a month for rent. Appellant testified that she had no
Stark County, Case No. 2016CA00055                                                        5


unsecured debt except for $300.00 on one credit card and that she paid cash for

everything. She testified that her health was fairly good and that there had been no

financial intertwining between her and appellee since their separation.

       {¶10} On cross-examination, appellant agreed that her monthly gross income was

$7,515.36 and monthly net income was $4,146.54. She testified that the difference

between the two was spent on taxes, hospitalization, nursing home long term care, and

repaying a 401K loan. Appellant has a retirement plan through her employer. In 2014,

appellant paid $14,821.00 in federal income taxes. When asked why she had not filed for

divorce when she had been making in the high seventies, low eighties for quite some

time, appellant testified that it was an “oversight” on her part. Transcript of October 7,

2015 hearing at 41.

       {¶11} On redirect, appellant testified that while she did not work for Todd and

Associates for a period of time between 1998 and 2001, she was still working at other

jobs and other avenues to make money.

       {¶12} The Magistrate, in an Order filed on October 9, 2015, asked the parties to

brief the issue of duration of the marriage. Both parties filed post trial briefs. The

Magistrate, in a Decision filed on October 26, 2015, found that the termination date for

the marriage was October 7, 2015, the date of the final hearing. The Magistrate

recommended that appellant be ordered to pay appellee spousal support in the amount

of $1,800.00 a month for 98 months, that such support terminate upon the remarriage or

death of appellee, and that the court not retain jurisdiction over the duration or amount of

spousal support. Appellant filed objections to the Magistrate’s Decision.
Stark County, Case No. 2016CA00055                                                        6


       {¶13} The trial court, in a Judgment Entry filed on February 12, 2016, adopted the

Magistrate’s Decision in part and modified it in part. The trial court found that the

termination date of the parties’ marriage was October 7, 2015. The trial court ordered that

appellant pay appellee spousal support for 36 months rather than 98 months and that

spousal support would terminate upon the death of either party or the remarriage of

appellee. The trial court retained jurisdiction over the amount of support and ordered

appellant’s counsel to prepare the final entry.

       {¶14} A Decree of Divorce was filed on March 11, 2016.

       {¶15} Appellant now raises the following assignments of error on appeal:

       {¶16} THE TRIAL COURT ABUSED ITS DISCRETION BY SELECTING

OCTOBER 7, 2015 AS THE DATE FOR TERMINATION OF THE MARRIAGE.

       {¶17} THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

APPELLEE ANY AMOUNT OF SPOUSAL SUPPORT.

                                                  I

       {¶18} Appellant, in her first assignment of error, argues that the trial court abused

its discretion in using October 7, 2015, the date of the final hearing, as the termination

date for the marriage rather than July 1, 1998, the date of the parties’ separation. We

disagree.

       {¶19} Appellant, in her brief, cites to R.C. 3105.171(A)(2), which deals with

division of property and separate property. Such section states as follows:

       (A)   As used in this section:..

       (2)   “During the marriage” means whichever of the following is applicable:
Stark County, Case No. 2016CA00055                                                           7


      (a)    Except as provided in division (A)(2)(b) of this section, the period of

      time from the date of the marriage through the date of the final hearing in

      an action for divorce or in an action for legal separation;

      (b)    If the court determines that the use of either or both of the dates

      specified in division (A)(2)(a) of this section would be inequitable, the court

      may select dates that it considers equitable in determining marital property.

      If the court selects dates that it considers equitable in determining marital

      property, “during the marriage” means the period of time between those

      dates selected and specified by the court. (Emphasis added).

      {¶20} Appellant argues that, under R.C. 3105.171(A)(2) and cited case law, the

trial court should have found the de facto termination of the marriage to be July 1, 1998,

the date of the parties’ separation. However, as noted by the Magistrate, there is no

authority to apply R.C. 3105.171, the property division statute, to the issue of spousal

support.

      {¶21} Moreover, we cannot say that the trial court abused its discretion in finding

that the term of the marriage was from July 1, 1989 to October 7, 2015. In order to find

an abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983). As noted by the trial court in its February 12, 2016 Judgment Entry:

             While the parties lived separately, there is no evidence that either

      party intended to terminate the marriage on that date. Either party could

      have filed a divorce between the date of separation and that date Husband

      [appellee] finally did file. Wife [appellant] did not file. Wife’s only rational for
Stark County, Case No. 2016CA00055                                                         8


       not doing so was that it was an oversight, which is very hard to believe. As

       the Magistrate notes, she did not even file an answer or counterclaim in this

       action.

       {¶22} In addition, after the parties separated, their children, who were living with

appellant, had visitation with appellee. Appellant testified that when the children were with

appellee, he was supporting them. Appellee testified that he maintained the children on

his health insurance when they were minors. The Magistrate, in her Decision adopted

with limited exceptions by the trial court, noted that the parties “shared a mutual interest,

or joint enterprise, in raising their two children, who were ages five and two when the

Husband moved out.”

       {¶23} Appellant’s first assignment of error is, therefore, overruled.



                                                 II

       {¶24} Appellant, in her second assignment of error, maintains that the trial court

abused its discretion in awarding spousal support to appellee. We disagree.

       {¶25} 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, 67, 554 N.E.2d

83 (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).

       {¶26} R.C. 3105.18(C)(1)(a) through (n) set forth factors a trial court is to consider

in determining whether spousal support is appropriate and reasonable, and in determining

the nature, amount, terms of payment, and duration of spousal support:
Stark County, Case No. 2016CA00055                                                           9


       {¶27} (C)(1) In determining whether spousal support is appropriate and

reasonable, and in determining the nature, amount, and terms of payment, and duration

of spousal support, which is payable either in gross or in installments, the court shall

consider all of the following factors:

       (c)    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;

       (d)    The relative earning abilities of the parties;

       (e)    The ages and the physical, mental, and emotional conditions of the

       parties;

       (f)    The retirement benefits of the parties;

       (g)    The duration of the marriage;

       (h)    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;

       (i)    The standard of living of the parties established during the marriage;

       (j)    The relative extent of education of the parties;

       (k)    The relative assets and liabilities of the parties, including but not

       limited to any court-ordered payments by the parties;

       (l)    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;
Stark County, Case No. 2016CA00055                                                       10


       (m)    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;

       (n)    The tax consequences, for each party, of an award of spousal

       support;

       (o)    The lost income production capacity of either party that resulted from

       that party's marital responsibilities;

       (p)    Any other factor that the court expressly finds to be relevant and

       equitable.

       {¶28} 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, ¶

27 (5th Dist.), citing Clendening v. Clendening, 5th Dist. Stark No.2005CA00086, 2005–

Ohio–6298, ¶ 16. The trial court must set forth only 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).

       {¶29} Upon our review of the record, we cannot say that the trial court abused its

discretion in awarding spousal support to appellee. We find that there was sufficient detail

to enable this Court to determine the appropriateness of the award and that the trial

court’s award was not arbitrary, unconscionable or unreasonable.
Stark County, Case No. 2016CA00055                                                         11


       {¶30} In the case sub judice, the parties were married over 26 years. Throughout

the parties’ marriage, appellant, who only has a high school diploma, has earned

substantially more than appellee. While appellant‘s monthly gross income is $7,515.36,

or approximately $90,000.00 a year, appellee’s gross earnings for 2014 were $36,403.15.

       {¶31} Appellant was, at the time of trial, in her early 50s, in good health, and has

health insurance through her employer. Appellant also contributes to a retirement

account, a life insurance plan and a long term nursing care plan. Appellant had significant

disposable income after her monthly expenses and testified that she paid cash for

everything.

       {¶32} In contrast to appellant, testimony was adduced that appellee, who went to

college after the parties separated and is a chemical dependency counselor, lives

paycheck to paycheck. His monthly expenses are around $2,616.97 and he owes

approximately $27,000.00 on student loans. Appellant did not contribute to appellee’s

higher education. Testimony was adduced that appellee, who was 63 years old, is unable

to save for retirement or to pay on his student loans and was diagnosed with Bell’s Palsy,

which has not prevented him from working at Oriana House.

       {¶33} Appellant contends that the trial court abused its discretion when it

drastically reduced the amount of spousal support recommended by the Magistrate

without explanation. As is stated above, the trial court reduced the duration of spousal

support from the 98 months recommended by the Magistrate to 36 months. We concur

with appellee that the trial court, by doing so, considered the parties’ separation. The trial

court, in its February 12, 2016 Judgment Entry, noted that it traditionally had granted

spousal support for a term of one third of the parties’ marriage. Based on the length of
Stark County, Case No. 2016CA00055                                                       12


the parties’ marriage, the Magistrate recommended that spousal support be awarded for

a period of 98 months. The trial court, however, awarded spousal support for a period of

36 months, which is approximately one third of the parties’ marriage up to their separation.

       {¶34} Appellant’s second assignment of error is, therefore, overruled.

       {¶35} Accordingly, the judgment of the Stark County Court of Common Pleas,

Family Court Division is affirmed.

By: Baldwin, J.

Farmer, P.J. and

Hoffman, J. concur.
