[Cite as Haren v. Haren, 2011-Ohio-891.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                      JUDGES:
NANCY JO HAREN                                :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                        Plaintiff-Appellant   :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 2010-CA-00162
GARY C. HAREN                                 :
                                              :
                     Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Stark County Court of
                                                  Common Pleas, Domestic Relations
                                                  Division, Case No. 2007-DR-01298


JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           February 22, 2011




APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee
DAVID S. AKE                                      ROSEMARY G. RUBIN
101 Central Plaza S., Ste. 600                    1435 Market Avenue, North
Canton, OH 44702                                  Canton, OH 44702
[Cite as Haren v. Haren, 2011-Ohio-891.]


Gwin, P.J.

        {¶1}    Plaintiff Nancy Jo Haren appeals a judgment of the Court of Common

Pleas, Domestic Relations Division, of Stark County, Ohio, entered on remand from this

court for determination of spousal support and re-division of the marital property.

Appellant, hereinafter referred to as “ex-wife”, assigns no formal error to the trial court,

but her brief argues the court should have conducted an evidentiary hearing on the

issue of spousal support, and she also contests the court’s division of the parties’

marital debt.

        {¶2}    Defendant Gary C. Haren, hereinafter referred to as “ex-husband”,

assigns three errors on cross-appeal:

        {¶3}    “I. THE COURT FAILED TO CONSIDER ALL OF THE STATUTORY

FACTORS CONTAINED IN OHIO REVISED CODE SECTION 3105.18 AND ABUSED

ITS DISCRETION IN FAILING TO AWARD ADEQUATE SPOUSAL SUPPORT AS FAR

AS DURATION AND AMOUNT.

        {¶4}    “II. THE COURT HAS FAILED TO AWARD SPOUSAL SUPPORT

RETROACTIVE TO THE DATE OF TRIAL BUT HAS ESTABLISHED THE ONSET FOR

SPOUSAL SUPPORT AS THE DAY OF REMAND IN OCTOBER OF 2009.

        {¶5}    “III. THE COURT FAILED TO AWARD TO THE DEFENDANT ANY

TANGIBLE PERSONAL PROPERTY FROM THE HOME WHICH IS CLEARLY AN

INEQUITABLE DIVISION OF MARITAL ASSETS.”

        {¶6}    This case came before us in 2009, on direct appeal from the divorce

decree. Haren v. Haren, 184 Ohio App. 3d 722, 2009-Ohio-5652, 922 N.E. 2d 284. In

the first appeal, we found the court abused its discretion in finding the ex-husband was
Stark County, Case No. 2010-CA-00162                                                     3


capable of earning additional income without losing his disability benefits, but chose not

to do so. At trial, ex-husband’s ability to perform strenuous physical activities was one

of the contested issues.

      {¶7}   At the hearing on remand, ex-wife asked the trial court to take new

evidence on the issue of the extent of the ex-husband’s disability. Ex-wife argued to the

trial court this court had made errors in reviewing and stating the record. The trial court

declined to take evidence, finding trial courts did not usually get asked to “straighten

out” courts of appeals’ judgments. The court found if the remand had instructed the

court to take further evidence it would have done so.

      {¶8}   We find the trial court did not err. The court that “straightens out” our

judgments is the Supreme Court.       The trial court correctly found it could not take

evidence on the issue in order to determine whether we were wrong.

      {¶9}   Our standard of reviewing decisions of a domestic relations court is

generally the abuse of discretion standard, see Booth v. Booth (1989), 44 Ohio St. 3d

142, 541 N.E.2d 1028. The Supreme Court made the abuse of discretion standard

applicable to alimony orders in Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 450

N.E.2d 1140; to property divisions in Martin v. Martin (1985), 18 Ohio St. 3d 292; to

custody proceedings in Miller v. Miller (1988), 37 Ohio St. 3d 71; and to decisions

calculating child support, see Dunbar v. Dunbar, 68 Ohio St 3d 369, 533-534, 1994 -

Ohio- 509, 627 N.E.2d 532. The Supreme Court has repeatedly held the term abuse of

discretion implies the court’s attitude is unreasonable, arbitrary or unconscionable,

Blakemore, supra, at 219. When applying the abuse of discretion standard, this court
Stark County, Case No. 2010-CA-00162                                                    4

may not substitute our judgment for that of the trial court, Pons v. Ohio State Med.

Board, 66 Ohio St.3d 619, 621, 1993-Ohio-122, 614 N.E.2d 748.

       {¶10} Further, ex-wife argues the trial court’s finding that $5,000.00 of the

parties’ MasterCard bill was not a marital debt, but her separate debt was not supported

by the evidence. In the previous appeal, we found the MasterCard bill included ex-

wife’s payments to her attorney in the amount of $5,000.00. The trial court accordingly

had evidence from which it could determine the bill included the ex-wife’s separate debt.

       {¶11} Ex-wife asserts the trial court did not mention the American Express bill in

the divorce decree. On remand, the trial court addressed the American Express bill and

found it to be a marital debt. Our earlier remand directed the court to re-evaluate the

debts and it did not err in doing so.

       {¶12} Ex-wife’s allegations of error are overruled.

       {¶13} We turn then to ex-husband’s cross-assignments of error.

                                                I.

       {¶14} In his first assignment of error, ex-husband argues the trial court failed to

consider all the statutory factors, and abused its discretion because the spousal support

award is too low, and too short in duration.         The ex-husband’s spousal support is

$400.00 per month for 100 months. Appellant characterizes this as woefully inadequate,

and only affords ex-husband 35% of the after-tax income of the parties.

       {¶15} Our review of the record leads us to conclude the trial court did not err in

determining what it deemed to be an appropriate amount of spousal support given the

evidence before it.

       {¶16} The first cross-assignment of error is overruled.
Stark County, Case No. 2010-CA-00162                                                    5


                                                II.

       {¶17} In his second assignment of error, ex-husband argues the court should

have made the award of spousal support retroactive to the date of the trial, rather than

as of the date of the remand.

       {¶18} In Kunkle v. Kunkle (1990), 51 Ohio St. 3d 64, 554 N.E. 2d 83, the Ohio

Supreme Court held a trial court is vested with broad discretion to decide what is

equitable from the facts and circumstances of each case.           Kunkle at 87, citations

deleted. The court also reminded us we may reverse only if the trial court abuses its

discretion, and we must not substitute our judgment for that of the trial court. Id.

       {¶19} We find on the record before us the trial court did not abuse its discretion

in its award of spousal support.

                                                III.

       {¶20} In his third assignment of error, ex-husband argues the trial court erred in

not awarding any tangible personal property from the home, thereby fashioning an

inequitable division of marital assets.

       {¶21} The Ohio Supreme Court has cautioned courts of appeals from conducting

piece-meal appeals of property divisions, and instead, we must look to the entire award.

A flat rule to determine the distribution cannot be established because equity depends

on the totality of the circumstances. Briganti v. Briganti (1984), 9 Ohio St.3d 220, 222,

459 N.E.2d 896. The Supreme Court has held the property division need not be equal

to be equitable. “A Court of Common Pleas has broad discretion to determine what

property division is equitable in a divorce proceeding. The mere fact that a property

division is unequal does not, standing alone, amount to an abuse of discretion.” Cherry
Stark County, Case No. 2010-CA-00162                                                   6

v. Cherry (1981) 66 Ohio St.2d 348, 20 O.O.3d 318, 421 N.E.2d 1293, syllabus by the

court, paragraph two.

       {¶22} Our review of the record leads us to conclude the trial court did not err in

its division of the marital assets.

       {¶23} The third assignment of error is overruled.

       {¶24} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division of Stark County, Ohio, is affirmed.

By: Gwin, P.J., and

Wise, J., concur;

Hoffman, J., concurs

separately




                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN

                                             _________________________________
                                             HON. JOHN W. WISE


WSG:clw 0204
Stark County, Case No. 2010-CA-00162                                                    7


Hoffman, J., concurring

       {¶25} I concur in the majority’s analysis and disposition of Appellant’s appeal

and Cross-Appellant’s first and second assignments of error. I further concur in the

majority’s disposition of Cross-Appellant’s third assignment of error.

       {¶26} I write separately to caution Appellant failure to file a brief in compliance

with App.R.16 renders it susceptible to dismissal for want of prosecution.

       {¶27} I also write separately as to Cross-Appellant’s third assignment of error. I

would overrule it as being barred as res judicata.



                                          _____________________________________
                                          HON. WILLIAM B. HOFFMAN
[Cite as Haren v. Haren, 2011-Ohio-891.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


NANCY JO HAREN                                   :
                                                 :
                           Plaintiff-Appellant   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
GARY C. HAREN                                    :
                                                 :
                                                 :
                        Defendant-Appellee       :       CASE NO. 2010-CA-00162




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

the Court of Common Pleas, Domestic Relations Division of Stark County, Ohio, is

affirmed. Costs to appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN

                                                     _________________________________
                                                     HON. JOHN W. WISE
