[Cite as Collins v. Collins, 2011-Ohio-4973.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

KATHY COLLINS                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
-vs-                                               Hon. Patricia A. Delaney, J.

WILLIAM COLLINS                                    Case No. 2010CA00283

        Defendant-Appellant

and

KATHY COLLINS
                                                   Case No. 2010CA00299
        Plaintiff-Appellant

-vs-

WILLIAM COLLINS

        Defendant-Appellee

                                                OPINION


CHARACTER OF PROCEEDING:                        Appeal from the Stark County Domestic
                                                Realtions Court, Case No. 2010DR231


JUDGMENT:                                       Reversed and Remanded


DATE OF JUDGMENT ENTRY:                         September 26, 2011

APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

TRACEY LASLO                                    DAVID S. AKE
325 E. Main St.                                 101 Central Plaza, South, Ste. 600
Alliance, Ohio 44601                            Canton, Ohio 44702
Stark County, Case No. 2010CA00283 and 2010CA00299                                       2

Hoffman, P.J.


       {¶1}   In Stark County App. No. 2010CA00283, defendant-appellant William

Collins (“Husband”) appeals the September 16, 2010 Final Entry/Decree of Divorce

entered by the Stark County Court of Common Pleas, Domestic Relations Division,

relative to the trial court’s property division. Plainiff-appellee therein is Kathy Collins

(“Wife”). In Stark County App. No. 2010CA00299, Wife appeals the same entry relative

to the duration of spousal support. Defendant-appellee therein is Husand.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   Husband and Wife were married on July 5, 1978, in Carroll County, Ohio.

Two children were born as issue of the marriage, both of whom are now emancipated.

On February 26, 2010, Wife filed a Complaint for Divorce, alleging as grounds gross

neglect of duty and extreme cruelty, and incompatibility. Husband filed a timely answer

and counterclaim, alleging as grounds extreme cruelty and incompatibility.

       {¶3}   The magistrate issued temporary orders on March 17, 2010. Pursuant

thereto, each party was to pay his/her own living expenses, and neither party was to

receive or pay spousal support. The matter came on for final hearing before the trial

court on September 2, 2010. The trial court issued its Final Entry/Decree of Divorce on

September 16, 2010.      The trial court found the settlement monies from a sexual

harassment lawsuit the parties brought against Wife’s employer were Wife’s separate

property. The trial court ordered Husband to pay Wife spousal support in the amount of

$400/month for a period of seven years. The trial court retained jurisdiction over the

spousal support order. The trial court also ordered Husband to pay Wife the sum of

$73.00 in order to equalize the property division.
Stark County, Case No. 2010CA00283 and 2010CA00299                                        3


       {¶4}   Wife filed a Civ. R.60(A) Motion for Relief from Judgment, asserting the

trial court incorrectly found the parties had a marriage of twenty-three years rather than

the actual length of thirty-three years, and as a result of the miscalculation of the length

of the marriage, the duration of the spousal support order was inappropriate. The trial

court has not ruled on this motion.

       {¶5}   It is from the September 16, 2010 Final Entry/Decree of Divorce Husband

appeals, raising the following assignments of error:

                                         2010CA00283

       {¶6}   “I. THE TRIAL COURT ERRED BY FAILING TO PLACE A VALUE ON

AND DIVIDE THE PARTIES’ HOUSEHOLD GOODS AND FURNITURE.

       {¶7}   “II. THE TRIAL COURT ERRED BY DECIDING THAT THE PROCEEDS

FROM A LAWSUIT WERE SEPARATE PROPERTY.”

       {¶8}   Wife appeals from the same, raising as error:

                                         2010CA00299

       {¶9}   “I. THE TRIAL COURT ERRED IN THEIR COMPUTATION OF LENGTH

OF   MARRIAGE,       THEREBY       RESULTING       IN   ERROR/MISCALCULATION            OF

DURATION OF SPOUSAL SUPPORT, AS AND AGAINST THE TRIAL COURT’S OWN

FINDINGS AND THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶10} “II. THE TRIAL COURT FAILED TO NET THE SEXUAL HARASSMENT

LAWSUIT PROCEEDS IN ACCORD WITH PRIOR ORDER OF PAYMENT TO FORD

CREDIT, AS AND AGAINST THE TRIAL COURT’S OWN ORDERS AND THE

MANIFEST WEIGHT OF EVIDENCE.
Stark County, Case No. 2010CA00283 and 2010CA00299                                        4


         {¶11} “III. THE TRIAL COURT ERRED IN RESTATING THE DEBT ON THE

2007 FORD F150 AS $11,500.00 RATHER THAN $22,786.56, AS AND AGAINST THE

TRIAL COURT’S OWN FINDINGS AND THE MANIFEST WEIGHT OF THE

EVIDENCE.”

                                          2010CA00283

         {¶12} In his first assignment of error, Husband maintains the trial court erred in

failing to value and subsequently divide the parties’ household goods and furniture. We

agree.

         {¶13} A trial court enjoys broad discretion in fashioning an equitable division of

marital property and awarding spousal support. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 218. For an abuse of discretion to exist, the court's attitude must be

“unreasonable, arbitrary or unconscionable” and not merely an error of law or judgment.

Id. at 219.     A reviewing court in domestic relations proceedings is guided by the

presumption the trial court correctly exercised its discretion. Babka v. Babka (1988), 83

Ohio App.3d 428, 433.

         {¶14} Husband testified he had the household goods appraised. Although Wife

objected to the introduction of the appraisal report, Exhibit J, Husband testified the total

appraisal of the property was $5,735.00. Wife did not object to or move to strike that

testimony. We are aware the trial court did not admit the appraisal report into evidence.

         {¶15} The trial court did not place a value on the marital property in the Final

Entry/Decree of Divorce. However, the trial court stated, “In order to achieve equity in

the division of property, the husband shall pay to the wife $73.00 within thirty (30) days

of this order.” Final Entry/Decree of Divorce at 3. Because the trial court had some
Stark County, Case No. 2010CA00283 and 2010CA00299                                      5


evidence as to the value of the marital property, it should have placed a value on such

and then order a division.

      {¶16} Husband’s first assignment of error is sustained.

                                               II

      {¶17} In his second assignment of error, Husband contends the trial court erred

in determining the proceeds Husband and Wife received from the settlement of a

lawsuit were separate property. We agree.

      {¶18} The determination of whether property is marital or separate is a mixed

question of law and fact and will not be reversed unless it is against the manifest weight

of the evidence. Torres v. Torres, Cuyahoga App. Nos. 88582 and 88660, 2007–Ohio–

4443, at ¶ 14. Once the characterization is made, the actual distribution of the property

will not be disturbed absent an abuse of discretion. Larkey v. Larkey (Nov. 4, 1999),

Cuyahoga App. No. 74765, citing Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 421

N.E.2d 1293.

      {¶19} Marital property is defined as “[a]ll real and personal property that

currently is owned by either or both of the spouses, including, but not limited to, the

retirement benefits of the spouses, and that was acquired by either or both of the

spouses during the marriage.” R.C. 3105.171(A)(3)(a)(i). “ ‘Separate property’ means

all real and personal property and any interest in real or personal property that is found

by the court to be any of the following: * * *(vi) Compensation to a spouse for the

spouse's personal injury, except for loss of marital earnings and compensation for

expenses paid from marital assets.”
Stark County, Case No. 2010CA00283 and 2010CA00299                                       6


      {¶20} Both Husband and Wife testified the settlement was awarded as lost

wages. Accordingly, we find the trial court's finding the settlement award was separate

property is against the manifest weight of the evidence. R.C. 3105.171(A)(6)(a).

      {¶21} Husband’s second assignment of error is sustained.

                                   Appeal No. 2010CA00299

                                                I

      {¶22} In her first assignment of error, Wife asserts the trial court erred in finding

the length of the marriage to be 22 years and, as a result, miscalculated the duration of

the spousal support award.

      {¶23} It is well-established that the trial court enjoys wide latitude in determining

the appropriateness as well as the amount of spousal support. Bolinger v. Bolinger

(1990), 49 Ohio St.3d 120. Such an award will not be reversed unless a reviewing court,

after considering the totality of the circumstances, finds that the trial court abused its

discretion. Kunkle v. Kunkle (1990), 51 Ohio St .3d 64, 67; Cherry v. Cherry (1981), 66

Ohio St.2d 348, 352. “The term ‘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, supra at 219.

      {¶24} “In making a spousal support award, a trial court must ‘consider all of the

relevant factors in [ R.C. 3105.18 ] * * * then weigh the need for support against the

ability to pay’.” Layne v. Layne (1992), 83 Ohio App.3d 559, 562-563. The resulting

award must be “fair, equitable and in accordance with the law.” Kaechele v. Kaechele

(1988), 35 Ohio St.3d 93, 94. An equitable result requires that “to the extent feasible,

each party should enjoy, after termination of a marriage, a standard of living comparable
Stark County, Case No. 2010CA00283 and 2010CA00299                                        7


to that established during the marriage as adjusted by the various factors of [R.C.

3105.18].” Buckles v. Buckles (1988), 46 Ohio App.3d 102, 110.

       {¶25} The parties were married on July 5, 1978. The date of the final hearing

was September 2, 2010. This is a period of 32 years, not 22 years as the trial court

found. Accordingly, we sustain Wife’s first assignment of error, and remand the matter

to the trial court to correct the Final Entry to reflect the correct length of the marriage.

Upon remand, the trial court shall reconsider all the factors in redetermining spousal

support in light of this correction.1

                                               II, III

       {¶26} In light of our disposition of Husband’s second assignment of error in Stark

App. No. 2010CA00283, we find Wife’s second and third assignments of error to be

premature.




1
 To clarify, this Court is not directing a change in the spousal support order but merely
a redetermination and possible change in light of the correction as to length of the
marriage.
Stark County, Case No. 2010CA00283 and 2010CA00299                                 8


      {¶27} The judgment of the Stark County Court of Common Pleas, Domestic

Relations Division, is reversed and the matter remanded for further proceedings

consistent with this Opinion and the law.

By: Hoffman, P.J.

Delaney, J. concurs, and

Wise, J. dissents


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


                                            ___________________________________
                                            HON. JOHN W. WISE


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
Stark County, Case No. 2010CA00283 and 2010CA00299                                            9

Wise, J., dissenting in part

       {¶28} I respectfully dissent from the majority’s decision to sustain Husband’s first

assigned error. The trial court in this instance prepared a detailed chart regarding

marital property division, which provides an explanation of how the court arrived at the

equalization payment of $73.00. At trial, the court ultimately rejected Husband’s

appraisal exhibit “J” concerning the household goods (Tr. at 76) and implicitly gave

them zero value as marital property in the property division chart. I am not persuaded

that the trial court’s decision in this regard rose to the level of an abuse of discretion.




                                                   s/ John W. Wise __________________
                                                   HON. JOHN W. WISE
Stark County, Case No. 2010CA00283 and 2010CA00299                               10


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT

KATHY COLLINS                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
WILLIAM COLLINS                           :
                                          :
       Defendant-Appellant                :        Case No. 2010CA00283
                                          :



       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas, Domestic Relations Division, is reversed and the

matter remanded for further proceedings consistent with our Opinion and the law.

Costs assessed to Appellee.




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


                                          ___________________________________
                                          HON. JOHN W. WISE


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT

KATHY COLLINS                             :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
WILLIAM COLLINS                           :
                                          :
       Defendant-Appellee                 :        Case No. 2010CA00299
                                          :



       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas, Domestic Relations Division, is reversed and the

matter remanded for further proceedings consistent with our Opinion and the law.

Costs assessed Appellee.




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


                                          ___________________________________
                                          HON. JOHN W. WISE


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
