[Cite as Rees v. Rees, 2012-Ohio-2129.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




DAVID WILLIAM REES,

        PLAINTIFF-APPELLEE,                               CASE NO. 8-11-17

        v.

MARIBEL AGUILAR REES,                                     OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                            Domestic Relations Division
                           Trial Court No. DR10-03-0026

                                      Judgment Affirmed

                              Date of Decision: May 14, 2012




APPEARANCES:

        April H. Marlett for Appellant

        Daniel L. Bennett for Appellee
Case No. 8-11-17


WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Maribel Aguilar Rees (“Maribel”), appeals the

judgment of the Logan County Court of Common Pleas, Domestic Relations

Division, granting a divorce from Plaintiff-Appellee, David William Rees

(“David”). On appeal, Maribel contends that the trial court erred when it failed to

award her spousal support. For the reasons set forth below, the judgment is

affirmed.

       {¶2} David and Maribel were married on November 22, 2002, and have one

child, a daughter, who was born in February of 2006 and was four-years old when

the David filed his Complaint for Divorce on March 9, 2010. A hearing was held

before the magistrate in October of 2010, and the magistrate heard testimony from

the parties and the guardian ad litem (“GAL”). The primary issue before the court

involved the allocation of parental rights and responsibilities. Both parties wanted

“custody” of their daughter. The parties did not own any real property, they had

no retirement accounts, and there were very few assets other than their personal

property.

       {¶3} On December 16, 2010, the magistrate issued her decision,

recommending that a divorce should be granted on the ground of incompatibility;

there should be no award of spousal support to either party and the court should

not retain jurisdiction; each party should be awarded their own personal property


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and be responsible for any debts in their name; David was to pay Maribel one-half

of the parties’ 2009 tax refund of $3,000; and David was to be designated the

residential parent of the child, with visitation as agreed, or according to the local

rules if there was no agreement. Neither party was to remove the child from the

State of Ohio without the permission of the other party or the trial court.

          {¶4} Although the GAL had recommended that Maribel be designated as

the residential parent “as long as she resides in Ohio,” the GAL had expressed

concerns that Maribel intended to return to Texas with the child and was not sure

that Maribel understood the importance of complying with the court’s orders to

allow David to have visitation. Maribel had left the jurisdiction with the child

previously, and only allowed David sporadic contact with the child while she was

in Texas.      The trial court disagreed with the GAL’s conclusion, finding that

enforcement of the condition of Mirabel remaining in Ohio would be difficult and

that the best interest of the child was met by designating David as residential

parent.

          {¶5} David was a forklift driver, earning about $14.35 per hour. (Oct. 14,

2010 Tr., p. 4) Mirabel worked two part-time restaurant jobs, earning $7.00 and

$7.30 per hour respectively. For purposes of the child support worksheet, the trial

court imputed minimum wage, at 30 hours per week to Mirabel, with the

calculations showing that she should pay David $157.01 per month. However, the


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Case No. 8-11-17


magistrate recommended a deviation, with Mirabel paying $0 child support for a

period of one year. (Mag. Dec., p. 4) David would be permitted to petition the

trial court for support after that period. The magistrate stated that “[t]he deviation

should be granted because of the differences in the parties’ incomes and because

Maribel needs sufficient funds to provide for [the child] during visitation.” (Id.)

David was to be responsible for obtaining health insurance for the child and would

be entitled to the tax exemption for as long as the support deviation was in place.

(Id., p. 5)

        {¶6} Mirabel filed objections to the magistrate’s decision. On June 14,

2011, the trial court overruled Mirabel’s objections and granted the final decree of

divorce, based upon all of the recommendations set forth in the magistrate’s

decision. Mirabel filed a request for separate findings of fact and conclusions of

law, tolling the time for appeal. On September 16, 2011, the trial court issued its

final judgment entry, finding that the request for findings was time-barred because

of non-compliance with Civ.R. 53(D)(3)(a)(ii). The trial court issued a general

finding, adopting the findings of fact from the magistrate’s decision, and issuing a

summary of the conclusions of law and its holdings from its June 14, 2011

decision.

        {¶7} Mirabel timely appeals this decision, raising the following assignment

of error for our review.


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                              Assignment of Error

      The trial court erred in not awarding spousal support to
      Appellant Maribel Rees

      {¶8} In her sole assignment of error, Maribel maintains that the trial court

should have awarded Mirabel spousal support due to the length of the marriage

and the disparity of the parties’ incomes. Mirabel states that she requested an

award of spousal support in her pretrial statement and through her testimony at the

final hearing, and that the trial court erred in not granting spousal support.

Mirabel asserts that several of the R.C. 3105.18 factors support an award of

spousal support, including: the fact that David was earning almost double what

Mirabel earned; Mirabel’s earning ability might be limited because she had only

been in the United States for eleven years and was not fluent in English; the

parties had been married for over eight years; and, that Mirabel would be unable to

continue to have the standard of living that the parties had established during the

marriage.

      {¶9} Trial courts are granted broad discretion concerning awards of spousal

support.    Tremaine v. Tremaine, 111 Ohio App.3d 703, 706 (2d Dist.1996);

Siekfer v. Siekfer, 3d Dist. No. 12-06-04, 2006-Ohio-5154, ¶ 15. Accord, Kunkle

v. Kunkle, 51 Ohio St.3d 64, 67 (1990). Their orders will not be reversed on

appeal absent an abuse of that discretion. Id. An abuse of discretion is more than

an error in judgment; it signifies that the trial court's attitude was unreasonable,

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arbitrary, or unconscionable. Timberlake v. Timberlake, 192 Ohio App.3d 15,

2011-Ohio-38, ¶ 9 (3d Dist.), citing Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983). A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. Bruce v. Bruce, 3d Dist. No. 9-10-57, 2012-Ohio-45, ¶ 13, citing

State v. Boles, 187 Ohio App.3d 345, 2010–Ohio–278, ¶ 17–18 (2d Dist). citing

Black’s Law Dictionary (8 Ed.Rev.2004) 11.          When applying an abuse-of-

discretion standard, an appellate court may not substitute its judgment for that of

the trial court. Blakemore; Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990).

      {¶10} R.C. 3105.18 governs the trial court's award of spousal support and

requires the court to consider fourteen factors set forth in R.C. 3105.18(C)(1)

when determining whether spousal support is appropriate and reasonable, and

when determining the nature, amount, terms of payment, and duration of the

support. Strasburg v. Strasburg, 3d Dist. No. 2-10-12, 2010-Ohio-3672, ¶ 26;

Kunkle, supra. The factors are as follows:

      (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;

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      (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).

      {¶11} The burden of establishing the need for spousal support rests with the

party that is seeking such support. Rymers v. Rymers, 11th Dist. No. 2009-L-160,

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2010-Ohio-6439, ¶ 38; Stetler v. Stetler, 6 Ohio App.3d 29 (3d Dist.1983) (while

there is no general burden of proof under R.C. 3105.18, each side has the burden

of going forward with evidence as to any factor which it wants considered,

bringing forth facts tending to prove its version of the manner in which such

factors should be applied).    “A party cannot complain if a listed factor [for

spousal support] has not been considered on which neither party offered any

evidence.” Stetler at 29.

       {¶12} In deciding against an award of spousal support, the magistrate stated

that “[t]he issues of property division and spousal support were really glossed

over. * * * Spousal support was discussed briefly, but this Magistrate would have

to infer much from the testimony, which makes such award problematic.” (Mag.

Dec., pp. 3-4) The record supports the magistrate’s finding that no arguments or

evidence were set forth to support an award of spousal support to Maribel. In

Mirabel’s September 2, 2010 pretrial statement, she merely states: “Plaintiff and

Defendant were married November 22, 2002. [Mirabel] is requesting spousal

support.” No reasons were given, nor was there any evidence provided why

Mirabel would need to receive spousal support. At trial, the testimony on the

subject was limited to:

       Q.   Okay. Are you also asking for spousal support?

       A.   Yes.


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(Tr., p. 52.) Thereafter, the testimony turned to the fact that Mirabel was not

personally receiving any government benefits because she did not have a social

security number.

       {¶13} Mirabel did nothing more than merely make an unsupported request

for spousal support. We do not find that the trial court abused its discretion when

it did not attempt to “infer” that she was entitled to support. And, even if we were

to do so, we do not find that the trial court’s decision was unreasonable or

arbitrary based on the specific facts and circumstances that were before the trial

court in this case.

       {¶14} Although Mirabel claims she should be awarded spousal support

because of the length of the marriage, eight years is not necessarily a marriage of

long duration. David was earning more than Mirabel, but his income of less than

$30,000 per year was not excessive, especially since he will have the added

expenses and responsibilities of caring for their daughter, while receiving no child

support. Futhermore, David was 53 years old at the time of the hearing, and was

much closer to retirement than Mirabel, who was only 35. Neither party had any

retirement savings. There was no evidence that either party suffered from any

physical, mental or emotional conditions that would preclude them from working,

and there was no testimony concerning their education and training.




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      {¶15} David testified that he only had about $200 in his checking account,

he did not own any real property, he was driving a 1997 vehicle, and his only

personal property consisted of his guitars. Mirabel did not present any evidence

on how her standard of living would change from during her marriage.

      {¶16} On appeal, Mirabel wants us to find that the trial court should have

inferred that she would be hindered in her ability to find employment because she

was not fluent in English and was undocumented. However, she testified that she

had managed to obtain two part-time positions in just the short time since she had

returned to Ohio, and she also testified that she had applied for a visa under the

VAWA (Violence Against Women Act). The record shows that she had been

granted authorization for employment by the U.S. Citizenship and Immigration

Services on April 14, 2011, prior to the final judgment entry. While her limited

English could potentially be a liability, her bilingual ability could also be

considered an asset.

      {¶17} We find that the trial court’s decision in not awarding spousal

support was not in any way unreasonable, arbitrary or unconscionable. Mirabel

did not provide any evidence or arguments in support of her need for such support.

Furthermore, the trial court did allow a deviation from the calculated child support

that Mirabel was to pay to David, thereby saving her $157 a month for at least one

year. Based on all of the above, Mirabel’s assignment of error is overruled.


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       {¶18} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, P.J. and ROGERS, J., concur.

/jlr




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