[Cite as Brown v. Brown, 2013-Ohio-2709.]


                                     COURT OF APPEALS
                                 COSHOCTON COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


LINDA L. BROWN                              :     JUDGES:
                                            :
                                            :     Hon. W. Scott Gwin, P. J.
        Plaintiff - Appellee                :     Hon. John W. Wise, J.
                                            :     Hon. Craig R. Baldwin, J.
                                            :
-vs-                                        :
                                            :
CORY L. BROWN                               :     Case No. 2012CA0010
                                            :
                                            :
        Defendant - Appellant               :     OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Coshocton County
                                                  Court of Common Pleas, Case No.
                                                  10-DV-0756




JUDGMENT:                                         Affirmed




DATE OF JUDGMENT:                                 June 25, 2013




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

COLE GERSTNER                                     DAN GUINN
Gottlieb, Johnston, Beam & Dal Ponte, P.L.L.      118 West High Avenue
320 Main Street, P.O. Box 190                     New Philadelphia, OH 44663
Zanesville, OH 43702
Coshocton County, Case No. 2012CA0010                                                      2




Baldwin, J.

      {¶1}     Appellant Cory L. Brown appeals a judgment of the Coshocton County

Common Pleas Court granting appellee Linda L. Brown a legal separation.

                              STATEMENT OF FACTS AND CASE

      {¶2}     The parties were married on April 3, 1970.          Appellee filed the instant

action seeking a legal separation from appellant. Appellant filed an answer admitting

the grounds of incompatibility for a legal separation, and also counterclaimed for

divorce.

      {¶3}     The case proceeded to a hearing before a magistrate. At the time of the

hearing, appellee was 59 years old. She had significant health issues, including post

status hysterectomy, a prolapsed bladder, and general incontinence. She had only

worked full-time outside the home for two years of the marriage, and was employed

part-time at Marilyn’s Natural Foods.        Appellant was 62 years old and also had

significant health problems, including arthritis and prostate difficulties. Appellant had

been retired on social security disability for about five years.

      {¶4}     The magistrate recommended that appellee be granted a legal separation

and that appellant’s counterclaim for divorce be denied. The magistrate recommended

that appellant pay spousal support to appellee in the amount of $369.00 per month for

eight years.

      {¶5}     Appellant filed objections to the magistrate’s decision.       The trial court

overruled his objections concerning spousal support and grounds for divorce. The court

found that a legal separation would allow appellee to remain on appellant’s health
Coshocton County, Case No. 2012CA0010                                                   3


insurance from his former employer, and granting appellant’s request for divorce would

place appellee in jeopardy because health insurance coverage is not likely to be

available. The court found that based on appellee’s health condition and the 41-year

length of the marriage the just result was to grant the legal separation and dismiss the

divorce.

      {¶6}    Appellant assigns two errors on appeal:

      {¶7}    “I.    THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING

THAT THE WIFE SHOULD BE AWARDED SPOUSAL SUPPORT DUE TO THE

LARGE PROPERTY AWARD SHE RECEIVED FROM THE HUSBAND.

      {¶8}    “II.   THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

HUSBAND’S COUNTERCLAIM FOR DIVORCE WHEN HE HAD PROPER GROUNDS

PURSUANT TO R.C. 3105.01.”

                                               I.

      {¶9}    Appellant argues that the court erred in awarding spousal support to

appellee. He argues that the award was unreasonable because she received a large

property settlement in the separation, and she is employed and has the ability to work

more hours than she chooses to work.

      {¶10}   Our review of a trial court's decision relative to spousal support is

governed by an abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348, 421

N.E.2d 1293 (1981). We cannot substitute our judgment for that of the trial court unless,

when considering the totality of the circumstances, the trial court abused its discretion.

Holcomb v. Holcomb, 44 Ohio St.3d 128, 541 N.E.2d 597 (1989). In order to find an

abuse of discretion, we must determine that the trial court's decision was unreasonable,
Coshocton County, Case No. 2012CA0010                                                          4

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

1140 (1983).

      {¶11}    R.C. 3105.18(C)(1) sets forth the factors the trial court is to consider when

awarding spousal support:

      {¶12}    “(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:

      {¶13}    “(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;

      {¶14}    “(b) The relative earning abilities of the parties;

      {¶15}    “(c) The ages and the physical, mental, and emotional conditions of the

parties;

      {¶16}    “(d) The retirement benefits of the parties;

      {¶17}    “(e) The duration of the marriage;

      {¶18}    “(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;

      {¶19}    “(g) The standard of living of the parties established during the marriage;

      {¶20}    “(h) The relative extent of education of the parties;

      {¶21}    “(i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;
Coshocton County, Case No. 2012CA0010                                                   5


      {¶22}   “(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;

      {¶23}   “(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;

      {¶24}   “(l) The tax consequences, for each party, of an award of spousal support;

      {¶25}   “(m) The lost income production capacity of either party that resulted from

that party's marital responsibilities;

      {¶26}   “(n) Any other factor that the court expressly finds to be relevant and

equitable.”

      {¶27}   The trial court found that there was a significant income disparity between

the parties during their long marriage, and due to age and education neither party could

earn significant income in the future. The court found that appellee had been a stay-at-

home mom, deferring significant earning opportunity. After dividing the assets of the

marriage equally, appellant still received Social Security in the amount of $1,987.00 per

month, while appellee’s part-time income was $568.53. While appellant argues there is

no evidence that appellee is unable to work more hours per week than her current part-

time hours, there is also no evidence that she has more working hours available to her

at the health food store. Appellee only worked full-time for two years of the forty-one

year marriage, and was 59 years old at the time of the divorce. The trial court did not
Coshocton County, Case No. 2012CA0010                                                   6


abuse its discretion in awarding spousal support in the amount of $369.00 per month for

eight years.

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

                                                      II.

      {¶29}    In his second assignment of error, appellant argues that the court erred in

not granting a divorce to him rather than granting a legal separation to appellee.

      {¶30}    Appellant first argues that he established the grounds of extreme cruelty

because appellee refused to have sex with him.

      {¶31}    “The definition of extreme cruelty is sufficiently broad to encompass acts

and conduct which destroy the peace of mind and happiness of one of the parties to the

marriage and make the marital relationship intolerable to that party.” Wuebker v.

Wuebker, 3rd Dist. No. 2-03-04, 2003-Ohio-2954, at ¶ 9.

      {¶32}    Appellant presented the following testimony to support his claim of

extreme cruelty:

      {¶33}    “A: And I couldn’t deal with – I got refused sex if she wanted something

and didn’t get it.

      {¶34}    “Q: When is the last time that you have had sex with your wife?

      {¶35}    “A: Two times in March the year before last.

      {¶36}    “Q: All right. That’s the last time?

      {¶37}    “A: Yes.

      {¶38}    “Q: And before that, how long a period of time was it?

      {¶39}    “A: It was very seldom. Maybe not even once a month. She refused

most of the time.”
Coshocton County, Case No. 2012CA0010                                                        7


      {¶40}   Tr. 108-109.

      {¶41}   The trial court did not err in finding this evidence did not rise to the level of

extreme cruelty. Both of the parties had health issues, and appellant had retired on

disability due to his health problems. Further, appellant has not demonstrated that

appellee’s refusal to have sex with him made the marital relationship intolerable to him,

as he testified that he loved his wife and did not want the separation, but if they were

going to be apart he wanted a divorce and not merely a separation.

      {¶42}   Appellant also argues that because the court granted the separation on

the grounds of incompatibility, the court should have granted him a divorce on the same

grounds.

      {¶43}   R.C. 3105.17(A) provides in pertinent part:

      {¶44}   “(A) Either party to the marriage may file a complaint for divorce or for

legal separation, and when filed the other may file a counterclaim for divorce or for legal

separation. The court of common pleas may grant divorces for the causes set forth in

section 3105.01 of the Revised Code. The court of common pleas may grant legal

separation on a complaint or counterclaim, regardless of whether the parties are living

separately at the time the complaint or counterclaim is filed, for the following causes:

      {¶45}   “(10) Incompatibility, unless denied by either party.”

      {¶46}   In addressing the issue of whether the court may choose between a legal

separation or a divorce when identical grounds are pled and proven, the Court of

Appeals for the Eleventh District held:

      {¶47}   “We believe that the clear language of the statute gives the trial court the

discretion to decide whether a legal separation or a divorce is most appropriate in each
Coshocton County, Case No. 2012CA0010                                                   8


situation, including those situations where parties are alleging grounds based on the

identical provisions of R.C. 3105.01 and 3105.17. As with other decisions made in

matters of domestic relations, the trial court’s decision should not be overturned absent

an abuse of discretion. The statute obviously contemplates the situation in which there

is evidence presented which would satisfy similar or dissimilar grounds for either divorce

or legal separation. In such a situation, the court is given discretion to choose between

the two based on the overall circumstances beyond the grounds alleged and proven.”

Harcourt v. Harcourt, 11th Dist. No. 97-A-0066, 1998 WL 683811 (September 30,

1998).

      {¶48}   The trial court found a legal separation would allow appellee to remain on

appellant’s health insurance from his former employer, and granting appellant’s request

for divorce would place appellee in jeopardy because health insurance coverage is not

likely to be available. The court found that based on appellee’s health condition and the

41-year length of the marriage the just result was to grant the legal separation and

dismiss the divorce. Based on the facts of this case, we find the court did not abuse its

discretion in granting a separation rather than a divorce on the grounds of

incompatibility.

      {¶49}   The second assignment of error is overruled.
Coshocton County, Case No. 2012CA0010                                           9


      {¶50}   The judgment of the Coshocton County Common Pleas Court is affirmed.

Costs are assessed to appellant.



By: Baldwin, J.

Gwin, P. J. and

Wise, J. concur.




                                      HON. CRAIG R. BALDWIN



                                      HON. W. SCOTT GWIN



                                      HON. JOHN W. WISE




CRB/rad
[Cite as Brown v. Brown, 2013-Ohio-2709.]


               IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


LINDA L. BROWN                                 :
                                               :
        Plaintiff - Appellee                   :
                                               :
-vs-                                           :      JUDGMENT ENTRY
                                               :
CORY L. BROWN                                  :
                                               :
        Defendant - Appellant                  :      CASE NO. 2012CA0010


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed. Costs

assessed to appellant.




                                            HON. CRAIG R. BALDWIN



                                            HON. W. SCOTT GWIN



                                            HON. JOHN W. WISE
