[Cite as Ernsberger v. Ernsberger, 2014-Ohio-4470.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100675



                               PAUL R. ERNSBERGER
                                                  PLAINTIFF-APPELLANT

                                                      vs.


                             DEBRA L. ERNSBERGER
                                                  DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                 Domestic Relations Division
                                   Case No. DR-13-345651

        BEFORE: Kilbane, J., Celebrezze, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                           October 9, 2014
ATTORNEY FOR APPELLANT

Edgar H. Boles
Moriarty & Jaros
30000 Chagrin Boulevard
Suite 200
Pepper Pike, Ohio 44124

ATTORNEYS FOR APPELLEE

Joy B. Savren
618 Hanna Building
1422 Euclid Avenue
Cleveland, Ohio 44115

Kathryn G. Eloff
James M. Willson
Eloff & Willson, L.L.P.
3820 Monticello Boulevard
Cleveland Heights, Ohio 44121
MARY EILEEN KILBANE, J.:

      {¶1} Plaintiff-appellant, Paul Ernsberger (“husband”), appeals from the judgment

entry issued in his divorce from defendant-appellee, Debra Ernsberger (“wife”), that

ordered him to pay spousal support subject to the parties’ death or the wife’s remarriage

or cohabitation. He assigns seven errors for our review. Having reviewed the record

and controlling case law, we affirm.

      {¶2} The parties were married in Illinois on June 24, 1984, and had one child

who is now emancipated. The husband filed his complaint for divorce on February 12,

2013.1 Several weeks later, on March 28, 2013, the parties entered into a settlement

agreement that divided their assets and debts.2 The parties also stipulated that each party

was entitled to a divorce on the grounds of incompatibility, pursuant to R.C. 3105.01(K).

The parties’ remaining issues,3 including Debra’s claim for spousal support and attorney




      1The    husband initially filed this matter on March 2, 2012, but the parties
filed a joint notice of dismissal on January 30, 2013.
      2In  accordance with the separation agreement, the husband is to pay $2,000
of certain enumerated debts, and the wife is to pay approximately $10,000 of
enumerated debts. The husband’s pension, with an approximate value of $280,792,
is to be equally divided, after offsets to the husband for, inter alia, “marital
residence sale deficiency,” and the husband’s advance of costs for preparing the
house for sale. The separation agreement also provides that the husband would
have a “set-aside amount” of $30,000 to be excluded from the division, pending the
wife’s documentation of the value of her pension with Sloan-Kettering.
      3Other issues that were tried in this matter included each parties’ claim that
the other had committed financial misconduct, and the determination of the end
date of the marriage (for purposes of dividing husband’s retirement account).
However, these issues are not germane to the instant appeal.
fees, were heard before a magistrate over four days, March 28, 2013, April 5, 2013, May

10, 2013, and May 14, 2013.

       {¶3} The evidence demonstrated that the husband is a tenured associate professor

of nutrition at Case Western Reserve University. At the time of trial, he was 58 years

old.   He earns $88,665 and has earned from $2,400-$5,000 per year from various

royalties and consulting work.     He receives health insurance as a benefit of his

employment. He makes a voluntary contribution of $1,565 per month to his retirement

plan, but he testified that he stopped making such contributions after the court required

him to pay a temporary support order of $1,040 per month. He also purchased a 2012

Prius and has a monthly car payment of $875. He works approximately 50 hours per

week and plays in a Klezmer orchestra.

       {¶4} The husband testified that the marriage began as a 50/50 partnership with

both spouses working and taking care of household responsibilities. During the first few

years of the marriage, the wife worked as a research assistant at Sloan-Kettering where

she made $20,000 per year. The wife took a three-month maternity leave after their son

was born.   She then went to school full time and obtained her undergraduate and

graduate degrees in social work at Case Western Reserve University, with tuition paid as

a benefit of the husband’s employment. The wife had several part-time jobs throughout

the marriage, with several extended periods of unemployment.        She had a full-time

salaried job from her home from 2011-2012, earning $35,000 per year, but she last

worked in October 2012.
       {¶5}     Dr. Richard Koletsky, the husband’s physician, testified that the husband

has limited and declining ability to work because he suffers from sarcodosis (a lung

disease), ankylosing splondylitis (an autoimmune disease), type 2 diabetes, and bouts of

congestive heart failure. His conditions are chronic and progressive, and he suffers from

frequent episodes of shortness of breath from congestive heart failure and pulmonary

hypertension.

       {¶6} Vocational expert Barbara Burk (“Dr. Burk”) conducted a vocational

assessment of the wife at the marital home on February 15, 2013. Dr. Burk learned that

the wife has a master’s degree in social work from Case Western Reserve University’s

School of Applied Social Sciences and received A’s in all of her classes. The wife was a

licensed social worker, but her license lapsed in 2007. In order to obtain a current

license, the wife would have to take continuing education courses and pass an

examination. The wife also worked as a research assistant with Sloan-Kettering, and her

most recent employment was a full-time position with the Virginia Commonwealth

University. Dr. Burk opined that once licensed, the wife could obtain employment as a

social worker and earn approximately $50,000 per year. Dr. Burk also stated that the

wife would have a similar wage earning potential if she obtained work as a research

assistant.

       {¶7} Dr. Burk admitted on cross-examination, however, that she is not qualified

to testify regarding the wife’s functional ability due to medical issues because that is a

medical determination. Dr. Burk also acknowledged that the wife obtained letters from
two of her doctors, Dr. Marc Burkowitz (“Dr. Burkowitz”) and Dr. Michael Pollack (“Dr.

Pollack”),4 regarding her physical conditions, but in accordance with instructions from

the husband’s attorney, she did not read them. In response to hypothetical questions that

were based upon these letters, Dr. Burk maintained that, taking various medical

conditions into account, the wife could obtain a sedentary employment or employment

that is primarily done in a seated capacity with two hours of walking.           Dr. Burk

conceded, however, that in light of the wife’s age, health, and mobility issues it may take

her a while to find employment.

       {¶8} The wife testified that she is 59 years old. At the time of the parties’

marriage, she had a high school diploma. She worked at Sloan-Kettering as a research

assistant from 1984-1989. After the parties moved to Cleveland, she attended Case

Western Reserve University full time and obtained her undergraduate degree in 1996 and

her master’s degree in 1999. She was out of the work force from 2000-2003 while she

cared for the parties’ son. The wife worked part time from 2003-2010, generally less

than 20 hours per week, and earned between $12-$18 per hour. From 2011-2012, the

wife worked from her home as a research assistant and earned $35,000, but that study

ended and she has been unemployed since that time. She receives $364 per week or

approximately $19,000 per year from unemployment.


       4These letters were not admitted, but the record suggests that the wife is
obese, and she suffers from Crohn’s disease, major depression and anxiety, and a
chronic flat foot deformity that impinges her ability to stand or walk for long
periods of time. Wife’s counsel was permitted to use the letters to formulate
hypothetical questions regarding the wife’s ability to obtain employment.
      {¶9} The wife testified that she likes to work and wants to find a job. She

checks the Cleveland Clinic online career board every day and has applied for at least five

jobs. She also regularly checks other websites like monster.com and indeed.com. She

has applied for almost 70 jobs. She also stated that it will cost her approximately $700 to

take the continuing education classes she needs before she can take the social worker

licensing examination, and she has applied for scholarships. She stated, however, that

she believed that most of the jobs that are available in her field require the LSW degree

and working under supervision for two years.

      {¶10} With regard to her health issues, the wife stated that she was born with a

“flat foot” deformity in her left foot. Although she wore corrective orthodics to deal

with this issue in the past, her ankle has begun to collapse. She has used a cane at

various points in the past ten years. She had surgery on her ankle approximately seven

years ago, but it was unsuccessful. As a result, she now has mobility issues. In January

2013, she fell and broke her humerus bone. She goes to physical therapy twice a week.

She also has Crohn’s disease and irritable bowel syndrome (causing bouts of sudden

diarrhea), diabetes, anxiety, depression, and suffers from panic attacks, all of which have

put her in a position of seeking work from her home.

      {¶11} In addition, she incurs $400 per month for medication that is not covered by

insurance because of the deductible amount of her health insurance. She learned that her

COBRA health insurance payment will be $500 per month. She also pays $595 each

month for utilities and household maintenance, which includes paying for lawn cutting
and snow removal that she is unable to do herself. She plans on moving to an apartment

with a monthly rental of $300 per month, including all utilities except electricity. As of

the start of trial, she had not begun receiving the temporary alimony that the court had

ordered. She admitted that there is an outstanding debt from a line of equity taken

against the house, but she testified that the house was purchased using her inheritance as a

down payment.

       {¶12} With regard to any pension benefits, she stated that she has made various

attempts to determine what pension benefits she may have from her job with

Sloan-Kettering, but she has been unable to obtain that information to date.

       {¶13} The wife’s neighbor, Robert Michael, testified that beginning in early 2013,

the wife has paid him to drive her to the grocery store and to various appointments. He

has earned $60 from five such trips. On some of these occasions, the wife has used a

wheelchair or motorized scooter.

       {¶14} The wife also presented testimony from Cathy Niswonger (“Niswonger”),

the husband’s live-in girlfriend. Niswonger stated that she is a secretary at the Cleveland

Clinic and earns $16.97 per hour. The husband contributes to the mortgage, groceries,

maintenance, and utilities and has given her monthly sums ranging from $408 to $1,224.

They also vacation together.

       {¶15} On June 27, 2013, the magistrate issued a 26-page decision. The magistrate

noted that the husband’s “physical health and mental health have been separately

reviewed in this Decision and are of great concern.” The magistrate also concluded:
      [The wife’s] physical health and mental health are also of great concern.
      While Plaintiff [husband] has so far been able to triumph over his medical
      conditions, Defendant [wife] is defined by hers. Her physical and mental
      health has impacted her ability to work outside the home during the
      marriage and will impact the kind of work that she can perform in the
      future.

      {¶16} The magistrate recommended that the husband pay the wife $1,000 per

month, until either party dies or the wife remarries or cohabitates, and further

recommending that the amount be increased to $2,000 after the marital residence is sold.

The magistrate also recommended that the husband pay the wife $18,000 of her

$25,030.45 attorney fee expense as additional spousal support. The magistrate found no

financial misconduct and determined the de facto termination date of the marriage to be

December 15, 2011.

      {¶17} The husband filed objections to the magistrate’s decision and complained

that the findings regarding the wife’s medical conditions and disability were not based

upon expert medical testimony, the decision failed to acknowledge that the wife obtained

free tuition from the husband’s employment, and failed to recognize his medical

conditions. On November 1, 2013, the trial court modified the magistrate’s decision to

include the following additional language:

      [Plaintiff asserts] that the Magistrate found [wife] to be disabled. No such
      finding appears anywhere in the Magistrate’s Decision, and if, in fact, that
      were a finding, the Magistrate’s award should have been much greater than
      that awarded. The Magistrate did find that the [wife’s] physical and mental
      health during the marriage played a role in the work that [wife] performed.
      It is axiomatic then that [wife’s] physical and mental health will continue to
      play a role in the work [wife] performs in the future.

      {¶18} The husband now appeals and assigns the following errors for our review:
                         Assignment of Error No. 1

The trial court erred as a matter of law when it failed to read and review the
record in ruling upon Plaintiff’s objections.




                         Assignment of Error No. 2

The trial court erred as a matter of law in awarding attorney fees in
violation of Loc.Rule 21(B).

                         Assignment of Error No. 3

The trial court erred and abused its discretion in awarding support upon a
finding that Appellee’s physical and mental health has impacted her ability
to work outside the home and will impact the kind of work that she can
perform in the future.

                         Assignment of Error No. 4

The trial court erred and abused its discretion by adopting Appellee’s
argument, enhanced by her appearance in court on several occasions in a
wheelchair (she had kept in the basement for 10 years but never used until
court) and that Appellee suffered from disabling limitations which
legitimately impacted her ability to work. To the contrary, the evidence
sustained the conclusion that Appellee was unemployed and
under-employed as a tactic to enhance a support award.

                         Assignment of Error No. 5

The trial court erred and abused its discretion in awarding support upon a
finding that Appellant has been able to triumph over his medical conditions
but Appellee is defined by hers. Appellee presented no competent or
admissible evidence of any medical condition, disability or reason she is
unable to work or impeded in her ability to find, hold or retain employment
outside the home or otherwise.

                         Assignment of Error No. 6
       The trial court erred and abused its discretion in adopting the incompetent,
       inadmissible hearsay evidence presented by Appellee and ignoring the
       first-hand, eyewitness testimony presented by Appellant as well as ignoring
       or discounting expert testimony of an acknowledged experienced and
       respected vocational expert, Barbara Burk.
                                Assignment of Error No. 7

       The trial court erred and abused its discretion in awarding Appellee an
       excessive amount of Temporary and Permanent spousal support, beyond
       Appellant’s ability to pay, Appellee’s actual need, and unreasonable in
       amount and duration. The court adopted Appellee’s patently erroneous
       financial information and precluded Appellant from challenging Appellee’s
       evidence.

                          Court Review of Magistrate’s Decision

       {¶19} In his first assignment of error, the husband asserts that the trial court erred

in failing to “read and review the record in ruling upon [husband’s] objections” to the

magistrate’s decision, because the court did not reference any particular testimony or

exhibit.

       {¶20} Pursuant to Civ.R. 53(D)(4)(d),

       (d) Action on objections.

       If one or more objections to a magistrate’s decision are timely filed, the
       court shall rule on those objections. In ruling on objections, the court shall
       undertake an independent review as to the objected matters to ascertain that
       the magistrate has properly determined the factual issues and appropriately
       applied the law. Before so ruling, the court may hear additional evidence
       but may refuse to do so unless the objecting party demonstrates that the
       party could not, with reasonable diligence, have produced that evidence for
       consideration by the magistrate.

       {¶21} However, the trial court is not required to “comment or reference” any

portion of the record in undertaking its independent review of the record. Pietrantano v.

Pietrantano, 12th Dist. Warren No. CA2013-01-002, 2013-Ohio-4330, ¶ 18.
       {¶22} When the trial court states that it has conducted an independent review, we

must presume that the trial court did exactly that. Rodriguez v. Rodriguez, 3d Dist.

Mercer No. 10-13-08, 2013-Ohio-4411, ¶ 18. An appellate court “must presume that a

trial court has performed an independent review of the magistrate’s recommendations

unless the appellant affirmatively demonstrates the contrary.” Cottrell v. Cottrell, 12th

Dist. Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 93, quoting Gilleo v. Gilleo, 3d

Dist. Mercer No. 10-10-07, 2010-Ohio- 5191, ¶ 46.

       {¶23} In this matter, the trial court stated that it had considered the “Magistrate’s

Decision filed June 27, 2013, pleadings, exhibits, and complete transcript[.]” Further, in

rejecting the husband’s claim that the magistrate found the wife to be disabled, the court

opined that “if, in fact, that were a finding, the Magistrate’s award of spousal support

should have been much greater,” and this additionally supports the court’s statement that

it reviewed the full record. Moreover, the husband has presented no evidence that the

court failed to conduct an independent review, therefore, we apply the presumption that

the court did in fact perform its duties under Civ.R. 53(D)(4)(d).

       {¶24} The first assignment of error is therefore without merit.

                                       Attorney Fees

       {¶25} In his second assignment of error, the husband asserts that the trial court

erred in awarding the wife attorney fees.

       {¶26} Our review of the award of attorney fees is limited to determining (1)

whether the factual considerations upon which the award was based are supported by the
manifest weight of the evidence, or (2) whether the domestic relations court abused its

discretion. Neumann v. Neumann, 8th Dist. Cuyahoga No. 96915, 2012-Ohio-591,¶ 6,

citing Gourash v. Gourash, 8th Dist. Cuyahoga Nos. 71882 and 73971, 1999 Ohio App.

LEXIS 4074 (Sept. 2, 1999), and Oatey v. Oatey, 83 Ohio App.3d 251, 614 N.E.2d 1054

(8th Dist.1992).

       {¶27} Pursuant to R.C. 3105.73(A), a court may award all or part of reasonable

attorney fees and litigation expenses to either party if the court finds the award equitable.

In determining whether such 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.” R.C. 3105.73(B);

Mlakar v. Mlakar, 8th Dist. Cuyahoga No. 98194, 2013-Ohio-100, ¶ 32.

       {¶28} Here, the husband complains that the trial court erred in awarding the wife

$18,000 for attorney fees because he does not have assets to pay this award. Although

the assets in this matter were limited, the court could properly consider the parties’

disparate incomes in deriving the attorney fees award. Reynolds-Cornett v. Reynolds,

12th Dist. Butler No. CA2013-09-175, 2014-Ohio-2893, ¶ 29-30.

       {¶29} The husband also complains that the award does not meet the requirement of

Loc.R. 21 because the fee is too large for this matter, and the attorney’s itemized

statement does not describe the services rendered with sufficient particularity.

       {¶30} Loc.R. 21(C) provides:

       At the time of the final hearing on the motion or pleading that gives rise to
       the request for attorney fees, the attorney seeking such fees shall present:
       (1)    An itemized statement describing the services rendered, the time for
              such services, and the requested hourly rate for in-court time and
              out-of-court time.

       (2)    Testimony as to whether the case was complicated by any or all of
              the following:

              (a) new or unique issues of law;

              (b) difficulty in ascertaining or valuing the parties’ assets;

              (c) problems with completing discovery;

              (d) any other factor necessitating extra time being spent on
              the case;

       (3)    Testimony regarding the attorney’s years in practice and experience
              in domestic relations cases; and

       (4)    Evidence of the parties’ respective income and expenses, if not
              otherwise disclosed during the hearing.

       {¶31} In accordance with Loc.R. 21(C), expert testimony is not required to prove

reasonableness of attorney fees.

       {¶32} In this matter, counsel for the wife presented an itemized statement that

defendant had incurred attorney fees of approximately $25,000 from 124.6 hours at $200

per hour. The fees statement detailed phone calls, rather than in-person meetings, which

counsel explained were because of the wife’s mobility issues. The attorney further

explained that the case was complicated by difficulties in preparing the house for sale, the

wife’s current unemployment, and difficulty reaching an agreement over the duration of

the spousal support.      The fees statement also set forth the nature of the service,

including “draft separation agreement,” “amend separation agreement,” and “research,
draft trial brief,” etc. Neither the hourly rate nor the number of hours was excessive.

The itemized statement and testimony were sufficient under Loc.R. 21.      In addition, the

wife testified that she did not have funds to pay for her attorney and had paid most of the

bills by charging them to a credit card. The court recognized the limited assets and the

factors complicating the proceedings, and also ordered significantly less attorney fees

than the amount sought. We find no abuse of discretion.

       {¶33} The second assignment of error is without merit.

                                 Spousal Support Award

       {¶34} In his third, fifth, sixth, and seventh assignments of error, the husband

asserts that the spousal support award is erroneous because the trial court concluded that

the wife’s physical and mental health issues have and will impact her ability to work

outside the home. The husband objects that this conclusion was unsupported by any

expert testimony from the wife and is contrary to the husband’s vocational expert’s

testimony.   In opposition, the wife complains that the husband has not provided this

court with a complete transcript, and therefore, we must presume regularity.

       {¶35} With regard to the issue of the appellate record, the parties agree that the

issues of this case were heard before a magistrate over four days, March 28, 2013, April

5, 2013, May 10, 2013, and May 14, 2013. The transcripts from these days have been

provided for our review, but it appears that the transcript of the April 1, 2013 temporary

support hearing and the transcript of the June 6-7, 2013 closing arguments have not been

provided. Because the issue of temporary support is not germane to this appeal and the
closing arguments are not evidence, we will not simply apply the presumption of

regularity and affirm. Rather, we will review this matter on the record provided, which

is the same record reviewed by the trial court in ruling upon the objections to the

magistrate’s decision.

       {¶36} With regard to our standard of review of spousal support issues, this court

reviews such awards for an abuse of discretion. See Dunagan v. Dunagan, 8th Dist.

Cuyahoga No. 93678, 2010-Ohio-5232, ¶ 12; Robinson v. Robinson, 8th Dist. Cuyahoga

No. 97933, 2012-Ohio-5414, ¶ 22.

       {¶37} In determining whether to grant spousal support and in determining the

amount and duration of the payments, the trial court must consider the factors listed in

R.C. 3105.18. Id. The factors the trial court must consider include each party’s income,

earning capacity, age, retirement benefits, education, assets and liabilities, and physical,

mental and emotional condition; the duration of the marriage; their standard of living;

inability to seek employment outside the home; contributions during the marriage; tax

consequences; and lost income because of a party’s fulfillment of marital responsibilities.

 R.C. 3105.18(C)(1)(a)-(m). The trial court is not required to comment on each statutory

factor; the record need only show that the court considered the statutory factors when

making its award. Carman v. Carman, 109 Ohio App.3d 698, 703, 672 N.E.2d 1093

(12th Dist.1996); Rossi v. Rossi, 8th Dist. Cuyahoga Nos. 100133 and 100144,

2014-Ohio-1832, ¶ 108. In addition, the trial court is free to consider any other factor

that the court finds to be “relevant and equitable.” R.C. 3105.18(C)(1)(n). If the record
reflects that the trial court considered the statutory factors, and if the judgment contains

detail sufficient for a reviewing court to determine that the support award is fair,

equitable, and in accordance with the law, the reviewing court will uphold the award.

Rossi, citing Chattree v. Chattree, 8th Dist. Cuyahoga No. 99337, 2014-Ohio-489, ¶ 71,

Schoren v. Schoren, 6th Dist. Huron No. H-04-019, 2005-Ohio-2102, ¶ 11.

       {¶38} Applying R.C. 3105.18(C)(1)(a), the court noted that there is no current

income from property. Under R.C. 3105.18(C)(1)(b), the court noted that the husband

earns $88,665 plus health insurance, and that the wife’s unemployment provides her with

approximately $19,000 per year. Pursuant to R.C. 3105.18(C)(1)(c), the court noted both

parties’ ages and found that both parties’ physical and mental health is “of great concern,”

but the husband

       has so far been able to triumph over his medical conditions, [whereas]
       defendant [wife] is defined by hers. Her physical and mental health has
       impacted her ability to work outside the home during the marriage and will
       impact the kind of work that she can perform in the future.

Under R.C. 3105.18(C)(1)(d), the court considered that the husband had a retirement

account with his employer and that he will have the benefit of future contributions.

Pursuant to R.C. 3105.18(C)(1)(e), the court noted the 27-year duration of the marriage.

R.C. 3105.18(C)(1)(f) is not applicable and under R.C. 3105.18(C)(1)(g), the court found

that the parties maintained a middle class standard of living during the marriage. In

terms of relative educations, under R.C. 3105.18(C)(1)(h) and (k), the court observed that

“should [the wife] seek to return to work as a social worker, she would need to expend

additional monies for fees, exams and course work.”         Under R.C. 3105.18(C)(1)(i),
temporary support had been granted. Pursuant to R.C. 3105.18(C)(1)(j) and (m), the

court observed that there “was some evidence that [the wife] lost income production

capacity as a result of her marital responsibilities.” From the foregoing, the decision of

the trial court is well supported in the record, and there is competent, credible evidence

going to all of the statutory elements for establishing a spousal support order.

       {¶39} The husband strongly disputes the trial court’s conclusions regarding the

wife’s medical conditions. He maintains that the trial court erred in concluding that the

wife suffers from “disabling limitations” that legitimately impact her ability to work, and

that the trial court’s conclusions are erroneous because he presented vocational expert

testimony to establish her employability and she did not.

       {¶40} As an initial matter, with regard to the claim that the trial court erred in

concluding that the wife suffers from “disabling limitations,” the record reveals that

neither the magistrate nor the trial court made any such finding. The trial court stated as

follows:

       The crux of Plaintiff’s Objections with regard to the spousal support award
       to Defendant centered around Plaintiff’s assertion that the Magistrate found
       Defendant to be disabled. No such finding appears anywhere in the
       Magistrate’s Decision, and if, in fact, that were a finding, the Magistrate’s
       award of spousal support should have been much greater than that awarded.

       {¶41} The husband also maintains that the wife’s medical conditions do not

preclude her from employment and do not confine her to her home. He further maintains

that she needlessly used a wheelchair during trial.
       {¶42} Appellate courts generally defer to a trial court’s decision regarding

credibility because the trial judge is best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony. Plata v. Plata, 8th Dist. Cuyahoga No. 81772,

2003-Ohio-3948, ¶ 17; Albright v. Putman-Albright, 2d Dist. Montgomery No. 25824,

2014-Ohio-622, ¶ 14; Oliver v. Oliver, 5th Dist Tuscarawas No. 2012 AP 11 0067,

2013-Ohio-4389, ¶ 40; Kim v. Kim, 6th Dist. Lucas No. L-02-1179, 2003-Ohio-4969, ¶ 5.

 It is likewise the prerogative of the trier of facts to determine the credibility of expert

witnesses and the weight to be accorded their testimony. Shultz v. Shultz, 5th Dist. Stark

No. 2004CA00306, 2005-Ohio-3640, ¶ 55.

       {¶43} In this matter, the husband’s expert did not take into consideration any

physical limitations, medical issues, or psychological conditions that could limit her

ability to sustain the type of employment for which he believes she is qualified. The

expert also did not address the issue of the lengthy absences from the work force.

       {¶44} Furthermore, it “is not necessary for a party to present expert medical

testimony substantiating certain medical problems where the injured party testifies and is

subject to thorough cross-examination.” Gullia v. Gullia, 93 Ohio App.3d 653, 663, 639

N.E.2d 822 (8th Dist.1994).      In that case, the husband argued that the trial court

committed reversible error in relying upon the testimony of the wife regarding the nature

and extent of her medical condition and in failing to require expert medical testimony.

The Gullia court held that a “trial court is not precluded from allowing [wife] to testify
regarding her own medical condition, especially where [wife] is subject to

cross-examination.” Id. Accord Poling v. Poling, 10th Dist. Franklin No. 13AP-189,

2013-Ohio-5141, ¶ 31-33.

       {¶45} The husband insists, however, that medical expert testimony was required in

this matter because the magistrate concluded that the wife’s mental and physical health

“impacted her ability to work outside the home.” In support of this contention, he cites

to this court’s decision in Potter v. Potter, 8th Dist. Cuyahoga No. 99247,

2013-Ohio-3531, ¶ 26, in which this court quoted a portion of the magistrate’s decision as

follows: “‘If the Defendant had genuine health related circumstances that prevented him

from seeking work, the convincing and proper evidence to that effect should have been

presented at trial. It was not.’” Id. at ¶ 26. Potter does not support this argument,

however, because the Potter court allowed the husband to testify extensively about his

medical condition but ultimately concluded that his evidence was not sufficient to support

a modification of a support order.   This court stated:

       Finally, William argues the magistrate abused his discretion by excluding

       evidence pertaining to his health conditions.      He argues that he was

       competent to testify as to the treatment he received, surgeries he has

       undergone, and any other issue regarding his health.         However, the

       magistrate did not exclude William’s testimony about his conditions, he

       excluded unauthenticated letters from out-of-court medical experts pursuant

       to Evid.R. 702. Moreover, as previously explained, the parties were aware
       of William’s diabetes and heart disease for several years and any

       deterioration in William’s health was contemplated at the time of the

       divorce. Therefore, the court heard evidence regarding the complications

       from William’s diabetes, but found that it did not warrant a modification of

       spousal support.

       {¶46} The husband additionally complains that the wife’s counsel was permitted to

use an unauthenticated and inadmissible letter from a physician to formulate hypothetical

questions during cross-examination of the vocational expert. The hypothetical questions

asked Dr. Burk to assume that the wife has mobility issues, can only work from home,

uses a wheelchair, has Crohn’s disease, and suffers from panic attacks. He maintains

that none of these assumptions are grounded in evidence.

       {¶47} A decision to admit or exclude evidence will be upheld absent an abuse of

discretion. O’Brien v. Angley, 63 Ohio St.2d 159, 163, 407 N.E.2d 490 (1980). Even in

the event of an abuse of discretion, a judgment will not be disturbed unless the abuse

affected the substantial rights of the adverse party or is inconsistent with substantial

justice. Id. at 164. Likewise, whether a hypothetical question is proper lies within the

trial court’s discretion. Knowlton v. Schultz, 179 Ohio App.3d 497, 2008-Ohio-5984,

902 N.E.2d 548, ¶ 60 (1st Dist.).

       {¶48} Under Evid.R. 705, the hypothesis upon which an expert witness is asked to

state an opinion must be based upon facts within the witness’s own personal knowledge
or upon facts shown by other evidence. Sowers v. Middletown Hosp., 89 Ohio App.3d

572, 586, 626 N.E.2d 968 (12th Dist.1993).

       {¶49} Although the cross-examination included hypothetical questioning derived

from the unadmitted letters of Dr. Pollack and Dr. Burkowitz, the wife’s testimony clearly

and credibly indicated that she suffers from these conditions; therefore, we find no abuse

of discretion.

       {¶50} To the extent that the husband complains about the duration of the award,

we note that the Supreme Court of Ohio has held

       that 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.

Kunkle v. Kunkle, 51 Ohio St.3d 64, 69, 554 N.E.2d 83 (1990).

       {¶51} In Gupta v. Gupta, 8th Dist. Cuyahoga No. 99005, 2013-Ohio-2203, ¶ 72,

this court upheld an indefinite award of spousal support for life, remarriage or

cohabitation, or the death of the wife. The court noted that in 2008, the husband earned

$1,218,854, and the wife’s earning ability and work history stood in stark contrast to the

husband’s. She worked part-time for the first five years of the marriage as a sales

associate and also as an instructor, but had not worked outside the home since 1988 and

lost her earning capacity.
      {¶52} In Patti v. Patti, 11th Dist. Portage No. 2013-P-0048, 2014-Ohio-1156, ¶ 8,

an indefinite award was also upheld where the wife had not been employed outside the

home since approximately 2010 and was receiving Social Security and/or Social Security

benefits in the annual amount of approximately $9,720.00, and the husband earned

approximately $60,000 per year.

      {¶53} In Wojanowski v. Wojanowski, 8th Dist. Cuyahoga No. 99751,

2014-Ohio-697, ¶ 48, this court upheld an indefinite award where the parties were

married for 23 years, the wife lacked potential to become self-supporting in light of her

age, her physical and mental health ailments, the years she spent as a homemaker, and her

very limited employment history during the marriage, and husband earned approximately

$120,000 per year.

      {¶54} Similarly, in Wormsley v. Wormsley, 3d Dist. Marion No. 9-14-04,

2014-Ohio-3086, ¶ 22, an indefinite award was upheld where the parties were married for

thirty-eight years, the wife was 58, worked only at occasional part-time jobs during the

marriage and earned approximately $16,000 per year, and the husband worked full-time

with overtime, and earned approximately $60,000 per year.

      {¶55} Applying all of the foregoing, we find no abuse of discretion in connection

with the duration of the spousal support award. The parties were married for 27 years.

The wife had full time employment for the first few years of the marriage but only earned

$20,000 per year.    From approximately 1989 to 2010, she had several periods of

unemployment, and when she was employed, she worked less than 20 hours per week at
$12 to $18 per hour. She worked full time from 2011 to 2012, but this work was done

from her home in light of her health issues, and she has been unemployed since October

2012. She stated that she wants to work and has applied for over 70 jobs, but she has

been unsuccessful in finding employment. In addition, the record clearly establishes that

the wife suffers from a variety of issues that have decreased her mobility and have

impeded her. She will need additional course work to be re-licensed to work as a social

worker, but her mental and physical health have “impacted her ability to work outside the

home.” We therefore find no abuse of discretion. The third, fifth, sixth, and seventh

assignments of error are without merit.

                          Issue of Voluntary Underemployment

       {¶56} In his fourth assignment of error, appellant argues that the trial court erred

insofar as it failed to find that the wife is voluntarily underemployed and her efforts to

find work were simply a minimal attempt to satisfy the requirements of her

unemployment compensation. He argues that because she has a master’s degree in social

work, husband’s expert opined that if she were to renew her license, she would be capable

of earning $40,000-$50,000 per year. He further argues that she prepared her resume in

a manner designed to preclude her from finding work, and that she refuses to look for

work outside of Cuyahoga County. He further complains that the trial court erred in

concluding that the wife suffers from “disabling limitations” that legitimately impact her

ability to work.
        {¶57} The issue of whether a party is voluntarily unemployed or underemployed is

a factual determination to be made by the trial court based on the circumstances of each

particular case. Rock v. Cabral, 67 Ohio St.3d 108, 112, 616 N.E.2d 218 (1993). A trial

court does not err in rejecting a claim that a spouse is voluntarily underemployed where

the spouse is employed to the same extent that she was during the marriage and does not

have any exceptional skills with which to improve the employment potential. Lawler v.

Lawler, 11th Dist. Geauga No. 95-G-1950, Ohio App. LEXIS 5242 (Nov. 24, 1997). If

the decision of the trial court is supported by some competent, credible evidence going to

all the essential elements of the case, we will not disturb it. Neumann v. Neumann, 8th

Dist. Cuyahoga No. 96915, 2012-Ohio-591, ¶ 16, citing Masitto v. Masitto, 22 Ohio St.3d

63, 66, 488 N.E.2d 857 (1986).

        {¶58} In this matter, the wife was 59 years old at the time of trial. She worked

full-time from 2011 to 2012, but she has worked primarily at part-time jobs that paid an

hourly wage for the vast majority of the marriage. She also had extended periods of

unemployment. She testified that she would like to work and has applied for over 70

jobs.   She has gone to various websites and called friends and professors to find

employment, but has not been successful. In addition, because of her Crohn’s disease,

anxiety and depression, and her balance issues, she prefers to work from home. On this

record, the trial court concluded that the wife was not voluntarily underemployed. There

is competent, credible evidence to support this conclusion.

        {¶59} The fourth assignment of error is without merit.
      {¶60} Judgment is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR
