[Cite as Nieman v. Nieman, 2016-Ohio-7169.]




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




JAMES NIEMAN,

        PLAINTIFF-APPELLEE,                             CASE NO. 1-16-22

        v.

LISA M. NIEMAN,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                            Domestic Relations Division
                           Trial Court No. DR20130480

                                    Judgment Affirmed

                          Date of Decision:   October 3, 2016




APPEARANCES:

        Andrew S. Grossman for Appellant

        Aimee L. Keller for Appellee
Case No. 1-16-22


SHAW, P.J.

      {¶1} Defendant-appellant, Lisa Nieman (“Lisa”), brings this appeal from the

April 14, 2016 Divorce and Shared Parenting Decree entered by the Allen County

Common Pleas Court, which distributed marital assets, awarded spousal support to

Lisa, and determined child support upon Lisa’s divorce from plaintiff-appellee,

James Nieman (“James”).

                       Relevant Facts and Procedural History

      {¶2} Lisa and James were married December 10, 1994, and had four children

together. The children were born in 1995, 1999, 2005, and 2008. The oldest child

was emancipated at the time the divorce was filed.

      {¶3} James is an orthopedic surgeon employed by the Orthopedic Institute

of Ohio (“OIO”). James holds an ownership interest in four businesses related to

his practice: OIO itself, Northwest Oil, West Central Land Development, and West

Central Ohio Physician’s Group.

      {¶4} Lisa is a registered nurse and worked for over four years in that position.

She has kept current with her certification; however, she has not worked since the

children were young.

      {¶5} On October 13, 2013, James filed a complaint for divorce alleging that

the parties were incompatible and that they had been living separate and apart for




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over a year. On October 31, 2013, Lisa filed her answer and a counterclaim for

divorce seeking spousal support and child support.

        {¶6} The matter proceeded to a final hearing on October 20-21, 2014. Both

James and Lisa testified at the final hearing. In addition, both parties called financial

experts who valued the parties’ substantial assets and testified as to James’s income.

The parties owned a number of assets that needed to be divided by the trial court in

its final decree including, inter alia, James’s interest in his businesses, the marital

residence in Lima, Ohio, a vacation home in Indiana, multiple life insurance

policies, multiple bank accounts, various farms containing in excess of 600 acres of

farmland, multiple boats, and high-end SUVs. At the conclusion of the hearing the

parties elected to submit written closing arguments.

        {¶7} On April 2, 2015, the trial court issued a 22-page decision on the matter.

In the decision the trial court valued and distributed the parties’ assets and debt. The

trial court elected to give a precise 50-50 split to Lisa and James, giving each

$4,217,180 in marital equity.1

        {¶8} The trial court also ordered James to pay Lisa spousal support in the

amount of $24,000 per month for 57 months. In addition, the court determined that

shared parenting was in the best interests of the parties’ children and adopted


1
 James was awarded $4,289,231 in marital equity and debt and Lisa was awarded $4,145,129 in marital
equity and debt. The trial court equalized the distribution by having James pay Lisa half of the difference
between the distribution. The difference between the distribution was $144,102, and half of it amounted to
$72,051, which James was ordered to pay Lisa to equalize the distribution.

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James’s shared parenting plan. The trial court then determined child support for the

three non-emancipated children, ultimately finding that James should pay $3,814.58

per month total in child support, or $1,271.53 per child, plus a 2% administrative

fee.2

        {¶9} On November 30, 2015, the trial court’s decision was reduced to a final

judgment.3 Lisa appealed from that judgment to this Court, arguing that: 1) the trial

court erred when it deducted speculative taxes from the value of James’s businesses;

2) the trial court abused its discretion in determining the amount and duration of

spousal support; and 3) the trial court abused its discretion in determining the

amount of child support.

        {¶10} In Nieman v. Nieman I, 3d Dist. Allen No. 1-15-30, 2015-Ohio-5186,

we agreed with Lisa’s first argument that the trial court erred in deducting

speculative taxes from the value of James’s businesses when James’s businesses

were not actually being sold, it was uncertain at what point in the future they may

be sold, it was uncertain what the tax rates might be in the future, it was uncertain

what the value of the businesses may be in the future, and the distribution of assets

did not necessitate a sale of the businesses. See Nieman I (for a complete discussion




2
 We have cited the trial court’s numbers from its original decision.
3
 The trial court initially issued an entry on April 29, 2015, which Lisa appealed from. However, this entry
did not properly incorporate the subsequently filed shared parenting decree. On November 10, 2015, this
Court issued a stay of the proceedings and the case was remanded to the trial court to issue a proper final
appealable order. That order was issued on November 30, 2015.

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and analysis of this issue). Thus we determined that the case had to be remanded to

the trial court to recalculate the value of James’s businesses without considering the

speculative tax consequences of a hypothetical sale of those businesses.

        {¶11} Because the trial court had to recalculate the value of James’s

businesses and then distribute any additional marital equity, we did not answer

Lisa’s remaining assignments of error related to spousal support and child support,

allowing the trial court to revisit its calculations for those issues, if it chose to do so,

since the trial court would be potentially distributing a substantial amount of

additional marital equity.

        {¶12} Upon remand, the trial court issued a supplemental decision

reevaluating James’s businesses without the tax consequences, which added in

excess of $1 million in equity that had to be distributed by the trial court. The trial

court then divided the marital assets again in a precise 50-50 split, giving each party

$4,936,726.50.4 The primary difference between the initial distribution and the

distribution following remand was that Lisa was awarded more of the parties’

farmland.

        {¶13} The trial court then re-analyzed all of the factors related to spousal

support, and kept Lisa’s spousal support at $24,000 per month for 57 months.


4
  James was awarded $5,002,324 in marital equity and debt and Lisa was awarded $4,871,129 in marital
equity and debt. In order to equalize the distribution, the court ordered James to pay Lisa one-half of the
difference. The difference in equity amounted to $131,195, so James was ordered to pay Lisa one-half,
amounting to $65,597.50.

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       {¶14} The trial court also re-analyzed child support based on the distribution

of the additional assets. The trial court found that due to the fact that Lisa received

more farmland in the redistribution of assets following remand, she received more

income from that farmland.       Lisa would now receive approximately $95,400

annually in income from the farmland, whereas in the original distribution of assets

she received approximately $75,500 annually in income from the farmland. As a

result, James’s child-support figure was reduced to $3,768.09 per month (plus a 2%

administrative fee), or $1,256.03 per month per child. This amounted to a difference

of $15.50 per child per month, or $46.50 per month total.

       {¶15} On April 14, 2016, the trial court’s decision was reduced to a final

judgment containing its orders. It is from this judgment that Lisa now again appeals,

asserting the following assignments of error for our review.

                   ASSIGNMENT OF ERROR 1
       THE TRIAL COURT ABUSED ITS DISCRETION IN
       DETERMINING THE AMOUNT AND DURATION OF
       SPOUSAL SUPPORT.

                  ASSIGNMENT OF ERROR 2
       THE TRIAL COURT ABUSED ITS DISCRETION IN
       DETERMINING THE AMOUNT OF CHILD SUPPORT.

                             First Assignment of Error

       {¶16} In Lisa’s first assignment of error, she argues that the trial court erred

in its determination of the amount and duration of spousal support awarded to Lisa.

Specifically, she contends that the trial court erred by “imputing” to her the ability

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to earn $48,000 to $50,000 as a registered nurse, that the trial court improperly based

spousal support solely on Lisa’s needs, and that the duration of spousal support was

too short for a 19-year marriage.

       {¶17} When awarding spousal support a “trial court is provided with broad

discretion in deciding what is equitable upon the facts and circumstances of each

case.” Kunkle v. Kunkle, 51 Ohio St.3d 64, 67 (1990). Moreover, trial courts are

granted broad discretion concerning awards of spousal support. Id. Their orders

will not be reversed on appeal absent an abuse of that discretion. Id. An abuse of

discretion is more than an error of judgment; rather, it implies that the trial court's

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983).

       {¶18} Revised Code 3105.18(C)(1) contains a number of factors for a trial

court to consider in awarding spousal support, and it reads as follows:

       (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:

       (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;

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      (d) The retirement benefits of the parties;

      (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.

      {¶19} In the decision it filed after remand, the trial court individually

addressed each of the factors based on the evidence presented, finding as follows:

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      (a) James currently has employment income of [$1,982,449]. * *
          * Lisa does not have any employment income presently.

      (b) James is earning in accordance with his abilities, while Lisa
          is under her earning ability and testimony indicated there
          would be approximately $48,000.00 to $50,000.00 of earnings
          should she secure employment with respect to her nursing
          degree as she is a registered nurse.

      (c) Each of the parties is of an age and in the appropriate
          physical, mental and emotional condition to permit each of
          the parties to be fully employed.

      (d) The Court has considered all retirement accounts of the
          parties and the assignment of those benefits to the parties;
          however, the Court will recognize that James will have a
          substantially greater opportunity to add to his retirement
          benefits in the future.

      (e) This is a marriage of approximately nineteen (19) years.

      (f)   It is not inappropriate for Lisa to work outside the home
            even though it is noted she is the primary caretaker of the
            children.

      (g) These parties had a high standard of living.

      (h) James is a licensed medical doctor and orthopedic surgeon
          and Lisa is a registered nurse.

      (i)   The Court has outlined the relative assets and liabilities of
            the parties. In examining these assets the Court also will
            consider that Lisa is now also receiving approximately
            626.96 acres of farmland, while James is receiving
            approximately 67.48 acres of farmland.

            Pursuant to the evidence at [the] hearing, this land has
            generated an average of approximately $106,000.00 of
            income and the Court believes [it] would have the
            opportunity to do the same in the future.

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            This is roughly a ninety percent/ten percent disposition of
            that land and at those rates, Lisa would have an additional
            $95,400.00 of income, while James would have an additional
            $10,600.00 of income.

      (j)   Neither party contributed to the education of the other party,
            as the parties married after Lisa had completed her nursing
            education and James had completed his education, but was
            ready to commence his residency at that time. There was no
            other indication of specific contribution to earning ability,
            save and except Lisa’s indication that she was responsible for
            the operation of the home, while James was responsible as
            the income producer.

      (k) There was no indication of additional time and expense
          necessary for Lisa to acquire additional education, training
          or job experience * * * and there was no further indication
          that any would be sought by Lisa in the future.

      (l)   The Court will consider the relative tax brackets and tax
            consequences of each party with respect to an award of
            spousal support.

      (m) Lisa indicated as a result of her home duties she no longer
          attempted to work and was in charge of making sure the
          children were where they needed to be, as well as taking care
          of the home.

      (n) The Court will consider all testimony with respect to the
          expenses and standard of living of the parties that was
          exercised during the marriage of the parties.

(Doc. No. 58).

      {¶19} After analyzing all of the factors, the trial court ultimately awarded

Lisa $24,000 per month in spousal support for a period of 57 months.



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        {¶20} On appeal, Lisa challenges the trial court’s spousal support award,

contending that it was not enough, arguing first that the trial court erred in its

consideration of factor (b) by stating that Lisa had the ability to earn $48,000 -

$50,000 annually as a registered nurse. Lisa argues that the trial court had no basis

to “impute” this income to her.

        {¶21} At the outset, we note that the trial court never “imputed” income to

Lisa. The trial court merely stated that Lisa was under-earning relative to her ability

as part of its analysis under R.C. 3105.18(C)(1)(b). The trial court explicitly stated

later in its decision after remand that it “did not originally impute income to Lisa

Nieman, nor will the Court at this point as the facts as originally presented are still

the same on remand except for the modification of the property as previously

indicated.” (Doc. No. 58).

        {¶22} Nevertheless, even assuming that the trial court did “impute” income

to Lisa in the stated amount, such a finding was supported by the only testimony

provided in the record. Lisa had testified that she was a registered nurse prior to

quitting to take care of the children and that she had kept current on her

certification.5 She also testified that she had over four years of work experience in

that position but that she had ultimately stopped working to take care of the children




5
 Lisa did contend, despite being currently certified, she would need additional training to compete in the
modern workforce.

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Case No. 1-16-22


as they grew up. Lisa was born in 1968, and thus was 46 years old when the trial

court made its original decision.

       {¶23} At the final hearing, James testified that a new registered nurse in the

Lima area could expect to start out at $48,000 to $50,000. James is a surgeon and

owns multiple businesses related to his practice so his opinion would carry more

weight than someone simply guessing at what a registered nurse in this area could

make. Nevertheless, even if James’s testimony carried very little weight, no other

testimony was presented at all by Lisa or James as to what Lisa could be expected

to earn as a registered nurse should she join the workforce.

       {¶24} Moreover, we would also note that James testified that a new nurse

could expect to start at $48,000 to $50,000. While Lisa has not worked in a long

time, she does have over four years of work experience, indicating that perhaps the

figure for a “new” nurse is on the low side. As a result, we cannot find that the trial

court abused its discretion even if the court had, as Lisa contends, imputed income

to her in the amount of $48,000 - $50,000.

       {¶25} Lisa next argues that the trial court did not comply with R.C.

3105.18(C)(1) when it determined spousal support because it “appeared to award

support based solely on what it consider[ed] to be Lisa’s needs.” (Appt’s Br. at 13).

Lisa bases her argument on the idea that although she was ordered to receive a




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“sizable amount of money for the vast majority of the world,” James was still

retaining far more income than Lisa was receiving in spousal support. (Id.)

        {¶26} Contrary to Lisa’s arguments, the trial court analyzed each factor

under R.C. 3105.18(C)(1) in its decision and there is absolutely no indication in the

record that the trial court based its decision solely on Lisa’s “needs.” After

analyzing all of the factors, the trial court explicitly stated that it was awarding

spousal support “pursuant to the examination of evidence, as well as specifically the

factors hereinbefore enumerated under Ohio Revised Code 3105.18.” (Doc. No.

58). The trial court then found that “it [was] reasonable and appropriate for spousal

support to be awarded in this case[.]” (Id.)

        {¶27} The trial court thus not only cited the specific language of R.C.

3105.18(C)(1) that the award was reasonable and appropriate, it specifically stated

it examined the evidence and the factors. Moreover, the trial court noted in the

factors that it considered the expenses and standard of living of the parties.6

        {¶28} Lisa left this divorce with exactly half of the substantial marital assets,

which included income-producing farmland from which she will be receiving in

excess of $95,000 annually. Even if Lisa could not earn $48-50,000 as a registered

nurse, she could still supplement her income from the farmland through

employment, which the trial court found was “not inappropriate.” (Id.)


6
  There is no statute requiring incomes to be equal following a divorce, so Lisa’s argument that James’s
income was going to be much higher than hers in the foreseeable future holds no merit.

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       {¶29} In our own review of the record we can find nothing to suggest that

the trial court’s award of spousal support was too low, and Lisa can point to nothing

in the record suggesting the trial court’s analysis was inappropriate or that the trial

court somehow abused its discretion. Therefore, Lisa’s argument that the trial court

erred by basing the award solely upon her “needs” is not well-taken.

       {¶30} Finally, Lisa argues that the duration of spousal support ordered was

“excessively short.” (Appt.’s Br. at 14). Lisa claims that for a marriage of 19 years

a spousal support award of 57 months was not long enough. Lisa cites no cases

convincing us that a 57-month spousal support award would be inappropriate for a

19-year marriage, particularly given the amounts and factors of R.C. 3105.18(C)(1)

applied by the trial court in this case. For all these reasons, Lisa’s arguments are

not well-taken, and her first assignment of error is overruled.

                            Second Assignment of Error

       {¶31} In her second assignment of error, Lisa argues that the trial court erred

in determining the amount of child support. Specifically, Lisa argues that the trial

court should have extrapolated from the guideline child support to accommodate the

children’s standard of living.

       {¶32} Matters involving child support are reviewed under an abuse-of-

discretion standard. Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-4542, ¶ 9

(2013), citing Pauly v. Pauly, 80 Ohio St.3d 386, 390 (1997).


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         {¶33} Lisa argues on appeal that in setting child support the trial court gave

“no consideration to the standard of living enjoyed by the children or the parents

during the marriage.” (Appt.’s Br. At 16). This statement is inaccurate both before

and after the remand.

         {¶34} Both before and after remand, the trial court calculated guideline child

support based on the worksheets then added $30,000 to the total annual child

support amount specifically to account for the children’s standard of living. The

court made this upward deviation from the guideline child support amount based on

the following reasoning. “The Court further would find a deviation is appropriate

as indicated in that the evidence demonstrated an overall spending pattern of an

additional $30,000.00 per year for the children[.]” (Doc. No. 58). Thus the trial

court explicitly accounted for the high standard of living enjoyed by the children.

         {¶35} Furthermore, the amount that was added to the child support more than

doubled James’s annual support obligation under guideline support. The trial court

thus explicitly took into account the children’s standard of living with a substantial

increase in the child support, and for Lisa to suggest otherwise is inaccurate at best

and disingenuous at worst. Therefore, Lisa’s argument on this issue is not well-

taken.

         {¶36} As we can find no error or abuse of discretion with the trial court’s

calculation of child support, Lisa’s second assignment of error is overruled.


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       {¶37} Having found no error prejudicial to Lisa in the particulars assigned,

her assignments of error are overruled and the judgment of the Allen County

Common Pleas Court is affirmed.

                                                              Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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