[Cite as Arthur v. Arthur, 2012-Ohio-1893.]




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




MARTHA J. ARTHUR,

        PLAINTIFF-APPELLEE,                              CASE NO. 17-11-28

        v.

VERNON ARTHUR,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Shelby County Common Pleas Court
                            Domestic Relations Division
                            Trial Court No. 10DV000170

                                     Judgment Affirmed

                             Date of Decision: April 30, 2012




APPEARANCES:

        Stanley R. Evans and R. Eric Sanders for Appellant

        Timothy S. Sell and Breann M. Zickafoose for Appellee
Case No. 17-11-28


SHAW, P.J.

       {¶1} Defendant-appellant, Vernon Arthur (“Vernon”), appeals the July 27,

2011 judgment of the Shelby County Court of Common Pleas, Domestic Relations

Division, awarding spousal support to plaintiff-appellee, Martha J. Arthur

(“Marty”), in the amount of $1,600.00 per month for an indefinite period of time.

Vernon also appeals the June 17, 2011 decision of the same court sustaining

Marty’s objection to the magistrate’s decision awarding her $929.59 in spousal

support for an indefinite period of time.

       {¶2} Vernon and Marty were married in 1963. During their forty-seven-

year marriage, Vernon was the breadwinner and Marty stayed at home, tending to

the household and raising the parties’ two children, both of whom are now

emancipated.

       {¶3} On July 27, 2010, Marty filed a complaint for legal separation and a

motion for temporary spousal support.

       {¶4} On August 19, 2010, a hearing was held on Marty’s motion for

temporary spousal support. Marty testified that her only income was $573.00 per

month in social security and that Vernon received $5,579.54 per month in

disability, social security, and pension benefits. Marty requested the magistrate

equally divide the total monthly income between the parties of $6,152.54, so that

each party would receive $3,076.27 a month. In order to accomplish this, Vernon


                                            -2-
Case No. 17-11-28


would have to pay Marty $2,503.27 a month in temporary spousal support in

addition to the $573.00 a month she received in social security. Vernon appeared

at this hearing pro se and did not offer any evidence or testimony to rebut the

evidence put on by Marty. After the hearing, Vernon retained counsel.

      {¶5} On August 30, 2010, Vernon filed an answer to Marty’s complaint for

legal separation and filed a counterclaim for divorce, claiming the parties are

incompatible.

      {¶6} On September 13, 2010, the magistrate ordered Vernon to pay Marty

$2,503.27 a month in temporary spousal support effective August 1, 2010. On

September 22, 2010, Vernon filed a motion to set aside or modify the temporary

spousal support order.

      {¶7} On October 15, 2010, the trial court ruled on Vernon’s motion to set

aside or modify the temporary spousal support order and remanded the matter to

the magistrate, stating that Vernon’s motion indicated there may be evidence that

was not available to the magistrate in rendering his prior ruling on temporary

spousal support.     This particular evidence concerned Marty’s actions of

withdrawing approximately $250,000.00 from several of the parties’ bank

accounts. At a second hearing on temporary spousal support, Marty admitted to

withdrawing this money because she feared that Vernon would drain the accounts

to purchase a new home, thereby depriving her of her share of the marital assets.


                                       -3-
Case No. 17-11-28


It is undisputed by the parties that Marty never spent the $250,000.00 or the

interest to support herself. Thus, the sum total was preserved during the pendency

of these proceedings and was eventually distributed as part of the property

settlement in the divorce. Therefore, the magistrate ultimately concluded that the

issue of temporary spousal support was a moot point and that neither party owed

the other additional monies as a result of the temporary spousal support award.

      {¶8} On December 17, 2010, the parties appeared before the magistrate for

the final hearing on Marty’s claim for legal separation and Vernon’s counter-claim

for divorce. On the record, the parties stipulated to the division of the marital

assets, both tangible and intangible, resulting in an equal distribution of

$427,000.00 to each party. The only issue before the magistrate was the award of

spousal support to Marty. At the hearing, both Marty and Vernon testified to their

monthly income and expenses.       Vernon also offered the testimony of Bruce

Dickman, a financial representative for Northwestern Mutual Financial Network,

who testified that Marty could purchase an annuity with the cash assets she

received in the divorce to generate an additional monthly income. After the

conclusion of the evidence, the magistrate determined that Vernon should pay

Marty $929.59 in spousal support for an indefinite period of time. The magistrate

also recommended that the trial court should not retain jurisdiction over the issue

of spousal support.


                                        -4-
Case No. 17-11-28


       {¶9} On January 21, 2011, Marty filed objections to the magistrate’s

decision and requested an extension of time to file supplemental objections upon

the preparation and filing of a transcript of the December proceedings. On April

29, 2011, after the preparation and filing of the transcript, Marty filed a

memorandum in support of her objections to the magistrate’s decision, arguing

that she is entitled to $2,169.00 a month in spousal support and maintaining that

the magistrate erred in only awarding her $929.59 in spousal support. On May 12,

2011, Vernon filed his response to Marty’s objections.

       {¶10} On June 17, 2011, the trial court issued its ruling on Marty’s

objections to the magistrate’s decision.      Upon reviewing the evidence and

considering the arguments of counsel and the statutory factors listed in R.C.

3105.18(C)(1), the trial court concluded that Vernon should pay Marty spousal

support in the amount of $1,600.00 per month. Thus, the trial court increased the

magistrate’s award of spousal support by $670.41 a month. The decision of the

trial court to increase the amount of spousal support to Marty was subsequently

included in the parties’ decree of divorce, which was journalized by the trial court

on July 27, 2011.

       {¶11} Vernon now appeals from this judgment, asserting the following

assignments of error.




                                        -5-
Case No. 17-11-28


                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ABUSED ITS DISCRETION IN
       DETERMINING THE AMOUNT OF MONTHLY SPOUSAL
       SUPPORT, IF ANY, WHICH APPELLANT SHOULD BE
       REQUIRED TO PAY IN ORDER TO MEET APPELLEE’S
       PURPORTED MONTHLY NEEDS BY FAILING TO
       INCLUDE IN SUCH DETERMINATION, THE AMOUNT OF
       INCOME WHICH THE COURT HELD SHOULD BE
       IMPUTED TO APPELLEE.

                      ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY
       IMPROPERLY TREATING SPOUSAL SUPPORT AS A
       DISTRIBUTION OF MARITAL PROPERTY WHEN IT HELD
       THAT SUBSEQUENT TO THE TERMINATION OF THE
       PARTIES’ MARRIAGE, APPELLEE WAS ENTITLED TO
       RECEIVE A BENEFIT FROM APPELLEE’S [SIC]
       CONTINUING INCOME OVER AND ABOVE THE
       APPROPRIATE AWARD OF SPOUSAL SUPPORT
       NECESSARY FOR APPELLEE TO MAINTAIN AN
       IDENTICAL STANDARD OF LIVING WHICH APPELLEE
       ENJOYED DURING THE MARRIAGE.

                      ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ERRED BY ADDRESSING
       APPELLEE’S EXTRANEOUS ARGUMENT AS TO THE
       AMOUNT OF SPOUSAL SUPPORT WHICH THE
       MAGISTRATE         HAD   RECOMMENDED APPELLEE
       RECEIVE, AS APPELLEE DID NOT SPECIFICALLY
       OBJECT TO THE AMOUNT OF SPOUSAL SUPPORT
       WHICH THE MAGISTRATE HAD RECOMMENDED IN
       THE MAGISTRATE’S DECISION AS REQUIRED UNDER
       CIV. R. 53(D)(3)(B)(ii).

       {¶12} Due to the similar nature of Vernon’s first and second assignments of

error, we elect to address them together.

                                        -6-
Case No. 17-11-28


                      First and Second Assignments of Error

       {¶13} In his first assignment of error, Vernon claims the trial court abused

its discretion in its calculation of spousal support because it failed to include

certain income to be “imputed” to Marty. In his second assignment of error,

Vernon claims the trial court’s order of spousal support is contrary to law because

it entitles Marty to a post-divorce benefit from Vernon’s continued income stream

and attempts to equalize the income between the parties. Vernon also argues that

the trial court’s spousal support award provides Marty with a standard of living in

excess of the one she enjoyed while married to him.

       {¶14} A review of a trial court’s decision relative to spousal support is

governed by an abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348

(1981). We cannot substitute our judgment for that of the trial court unless, when

considering the totality of the circumstances, the trial court abused its discretion.

Holcomb v. Holcomb, 44 Ohio St.3d 128 (1989).            To find an abuse of that

discretion, we must determine that the trial court’s decision was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

       {¶15} Revised Code Section 3105.18(C)(1)(a) through (n) sets forth the

factors that a trial court must consider in determining whether spousal support is




                                         -7-
Case No. 17-11-28


appropriate and reasonable and in determining the nature, amount, terms of

payment, and duration of spousal support. These factors are:

      (a) The income of the parties, from all sources, including, but
      not limited to, income derived from property divided, disbursed,
      or distributed under section 3105.171 of the Revised Code;

      (b) The relative earning abilities of the parties;

      (c) The ages and the physical, mental, and emotional conditions
      of the parties;

      (d) The retirement benefits of the parties;

      (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;


                                       -8-
Case No. 17-11-28


       (l) The tax consequences, for each party, of an award of
       spousal support;

       (m) The lost income production capacity of either party that
       resulted from that party’s marital responsibilities;

       (n) Any other factor that the court expressly finds to be
       relevant and equitable.

R.C. 3105.18(C)(1). The testimony at the final hearing established the following

facts relative to the consideration of these statutory factors.

       {¶16} At the time of the final hearing, Vernon was seventy-two-years-old

and Marty was seventy-years-old. As previously stated, the parties stipulated to a

division and distribution of the marital assets which entitled each party to an equal

portion of the assets totaling approximately $427,000.00. The following is the

distribution of the marital assets between the parties.

       Vernon                                   Marty
       Globe Life Insurance   $1,257.00       Money Market            $132,907.00
       Property Policy
       Prudential Life        $13,799.00      Gold Preferred Check    $7,788.00
       Insurance Policy
       Prudential Life        $12,237.00      1st National Bank CD    $10,631.00
       Insurance Policy
       Prudential Life        $8,532.00       1st National Bank CD    $114,527.00
       Insurance Policy
       National Guard Life    6,320.00        5/3 Bank IRA            $48,053.00
       Policy
       National Guard Life    $3,164.00       Golf Cart               $2,500.00
       Policy
       1st National Account   $1,973.00       House at Dorothy Love   $151,443.00
       5/3 Account            $58,224.00
       401K                   $268,878.00
       2009 Impala            $12,610.00
       Total                  $386,994.00     Total                   $467,849.00




                                            -9-
Case No. 17-11-28


In order to equalize the value of the marital assets received by each party in the

divorce, Marty paid Vernon the sum of $40,418.00 from the liquid assets in her

column. The parties agree that the distribution of the marital assets is fair and

equitable. Thus, the only issue submitted to the magistrate and the trial court was

the amount of spousal support to be awarded to Marty.

         {¶17} Marty testified that her monthly income is $1,066.77, which consists

of her social security income and half of the income stream generated from

Vernon’s Sprint pension.1 Marty testified that her total monthly expenses amount

to $3,235.00.         Marty explained that a significant portion of these monthly

expenses are related to the cost of her prescription drugs, which substantially

increases upon the trial court granting the parties a divorce, and the necessity of

her having to purchase supplemental insurance to alleviate some of her increased

medical costs.         Marty further explained that despite being on Medicare, her

monthly medical expenses are increasing due to the fact that she is no longer

covered under Vernon’s Veteran’s benefits, which heavily subsidized the cost of

her prescriptions.         Specifically, Marty testified that her monthly expenses for

prescriptions will increase from two to three hundred dollars a year, being covered


1
  In the Qualified Domestic Relations Order (“QDRO”) entered in this case, the parties agreed to equally
divide Vernon’s Sprint pension, which produces a total monthly income stream of $987.54. A QDRO is an
order in aid of execution on the property division ordered in the divorce decree dividing retirement or
pension assets. More specifically, it is an order that “creates or recognizes the existence of an alternate
payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefit payable
with respect to a participant under a plan * * *.” Employee Retirement Income Security Act of 1974,
Section 206(d)(3)(B)(i)(I).

                                                     -10-
Case No. 17-11-28


under Vernon’s benefits, to five to six thousand dollars a year without those

benefits.

       {¶18} Marty also testified that she and Vernon have lived in an independent

living residence on the grounds of Dorothy Love, a retirement community. The

evidence demonstrates that Marty and Vernon paid a $171,000.00 “entrance fee”

for the right to live on the premises for the rest of their lives. The parties testified

that if they choose to move out at this point, they would be entitled to receive a

refund of their “entrance fee” of approximately $151,000.00. Marty testified that

she planned to continue to live at Dorothy Love after the granting of the divorce.

However, Vernon no longer lives in the residence at Dorothy Love and plans to

purchase a home of his own. Thus, the right to receive the refund of the remaining

$151,000.00 “entrance fee” was accounted for in the parties’ stipulated property

settlement and made up a portion of Marty’s total $427,000.00 share of the marital

assets distributed in the divorce. Notwithstanding the payment of this “entrance

fee,” Marty testified that she still is required to pay a monthly “rent” fee to

Dorothy Love of $1,096.00.

       {¶19} Marty testified that she never worked during the parties’ marriage

and that her primary responsibility in the marriage was to take care of the children

and the household. Marty explained that she did not have any retirement income

of her own due to her role in the marriage and not working outside of the home


                                         -11-
Case No. 17-11-28


during the marriage. Therefore, she has been and still is dependent on Vernon’s

income stream. Marty testified that she suffers from poor health and is not able to

work in this stage of her life. Marty further explained that she has no education or

training which would allow her to enter the workforce. Marty testified that she

was seeking a spousal support award in the amount of $2,168.23, which is the

difference between her monthly income of $1,066.77 and her monthly expenses of

$3,235.00. Marty maintained that receiving $2,168.23 a month in spousal support

would allow her to continue to enjoy the same standard of living that she had

during the marriage.

       {¶20} Vernon testified that he receives a monthly income of $5,085.77,

which consisted of his social security income, his veteran’s disability income, and

half of the income stream generated from his Sprint pension. Vernon explained

that he is 80% disabled and receives disability income from the Veteran’s

Administration at disability rate of 100%.     Vernon testified that his monthly

expenses are $2,811.00.     However, Vernon admitted that $1,000.00 of that

monthly figure included payment for attorney fees for the divorce, which would

not be an ongoing expense, and thus conceded that his monthly expenses are

presently $1,811.00.

       {¶21} Vernon confirmed that Marty never worked outside the home during

the marriage and that he was the primary breadwinner throughout the duration of


                                       -12-
Case No. 17-11-28


their forty-seven-year marriage. He also recalled that one of the reasons they

decided to move into Dorothy Love was because he was facing four operations

and Marty felt she was no longer capable of taking care of him. He also recalled

Marty discussing her fear that she would eventually have to move into an assisted

living apartment due to her declining health. Vernon testified that he is currently

living with his daughter. Vernon further explained that he intends to buy a home

and to have his daughter and her children move in with him.

       {¶22} Vernon also offered the testimony of Bruce Dickman, a financial

representative with Northwestern Mutual Financial Network. At the request of

Vernon’s counsel, Dickman prepared a report which explained three annuity

options available to Marty if she chose to invest $235,000.00 of the liquid assets

she received as part of the property settlement in the divorce.           The most

conservative plan of the three options would pay Marty a monthly income of

$1,238.64 and had a guaranteed payout for at least twenty years.                 More

specifically, the plan guaranteed Marty a lifetime monthly payment; however, if

Marty were to pass away within twenty years of purchasing the annuity, the

beneficiary of her estate would only be entitled to payments for the remaining part

of the twenty-year period. Dickman testified that at the end of the twenty-year

period the annuity would be worth $297,273.00, demonstrating that Marty would

eventually receive a substantial return on her initial $235,000.00 investment.


                                        -13-
Case No. 17-11-28


       {¶23} Dickman testified that his calculations of the annuity options were

based solely on Marty’s age and the amount of money Vernon’s counsel indicated

she could invest.    Dickman admitted that he had no personal knowledge of

Marty’s particular circumstances and that Marty did not authorize him to do any

financial planning on her behalf. He also conceded that it is difficult to provide

investment advice or to make a specific recommendation to someone without

knowing the facts of his or her financial situation, for example the makeup of the

financial assets and other income streams available to that individual, or the

circumstances of that particular individual’s long-term health care needs.

Moreover, Dickman testified that Marty would have to live 15.8 years to reap the

full benefit of the $235,000.00 placed in the annuity and that she would have to

live beyond those 15.8 years before she began to receive a return on her

investment. Dickman also testified that Vernon had the same options of investing

his liquid assets from the divorce into an annuity, but that he was not asked to

analyze any scenarios involving Vernon’s money for the purposes of his testimony

at the hearing.

       {¶24} On cross-examination, Vernon’s counsel questioned Marty about her

plans to use the liquid assets she received in the divorce property settlement and

further questioned her regarding the possibility of purchasing an annuity described

by Dickman.       Marty expressed concern with “running out of money.”          In


                                       -14-
Case No. 17-11-28


particular, Marty explained that she feared a further deterioration of not only her

physical health but also her mental health and described that she has already begun

to experience a decline in her memory and her comprehension as well as her

ability to manage her money and to take her medication as prescribed. Marty

worried that this deterioration of her independence would force her to have to

move from her current residence, in an independent living home on the grounds of

the retirement community, into an assisted living apartment or a room in the

nursing facilities. She explained that she already has her name on a list to receive

an assisted living apartment to provide her access to increased care.         Marty

testified that if this were to happen her cost of living would increase significantly

and she would need to be able to access her liquid assets. Marty testified that even

if she were to leave Dorothy Love, it would only be to move to another retirement

community with similar facilities and a similar requirement of a substantial

“entrance fee.”

       {¶25} After hearing the evidence presented by the parties, the magistrate

issued his decision on the award of spousal support to Marty. The magistrate

noted that he considered the statutory factors in R.C. 3105.18(C)(1).         In his

decision, the magistrate specifically discussed the stipulated property settlement

between the parties. The magistrate also found the testimony of Bruce Dickman to

be particularly persuasive and noted that Marty had the option of obtaining


                                        -15-
Case No. 17-11-28


additional income by purchasing an annuity, under the most conservative of the

three plans presented by Dickman, which would generate an income of $1,238.64

per month. The magistrate then added this potential income to the $1,066.77 per

month Marty already received from her social security and half of Vernon’s

pension and concluded that these two figures together would result in Marty

receiving a monthly income of $2,305.41 per month. The magistrate determined

that Marty would then only need an additional $929.59 a month to meet her

monthly expenses of $3,235.00.     Based on this determination, the magistrate

awarded Marty $929.59 a month in spousal support to be paid by Vernon for an

indefinite period of time.

       {¶26} As previously mentioned, Marty objected to the magistrate’s

determination of spousal support in the amount of $929.59 and requested the trial

court to increase the award of spousal support to $2,169.00 a month, which is the

difference between Marty’s monthly income of $1,066.77 and her monthly

expenses of $3,235.00.

       {¶27} The trial court subsequently sustained Marty’s objection to the

magistrate’s decision. However, the trial court ordered Vernon to pay $1,600.00 a

month in spousal support, rather than the requested $2,169.00 a month, for an

indefinite period of time, thereby increasing the magistrate’s spousal support




                                      -16-
Case No. 17-11-28


award by $670.41. In support of its decision to increase Marty’s spousal support,

the trial court specifically found:

       The Court further notes that even though the agreed division of
       assets of the marriage provides for an equal distribution, there is
       at least a disparity of Sixty Thousand Dollars ($60,000.00) in
       intangible, “liquid” assets with the husband receiving the larger
       share. One Hundred Fifty-One Thousand Dollars ($151,000.00)
       of the assets provided to [Marty] as her share are in a non-
       income producing house.

       This Court has reviewed the evidence and considered the
       arguments of counsel. This Court is of the opinion that it is fair
       and reasonable after nearly 50 years of marriage that [Marty]
       should receive some benefit from the continuing income of
       [Vernon]. If she would have worked during the marriage, she
       could have been increasing her retirement benefits. However,
       because of the history of the marriage [Marty] is necessarily tied
       to the income stream of [Vernon].

       This Court finds that [Marty] has monthly income from her
       share of the Sprint QDRO and Social Security of One Thousand
       Sixty-Six Dollars and Seventy-Seven Cents ($1,066.77).
       [Vernon] has monthly income from his share of the Sprint
       QDRO, his military disability and Social Security of Five
       Thousand Eighty-Five Dollars and Seventy-Seven Cents
       ($5,085.77). This Court will factor into [Marty’s] share that she
       can generate some income from her monthly investments,
       whether from an annuity or otherwise. Taking the testimony
       from Bruce Dickman that she could receive an annuity
       investment of One Thousand Two Hundred Thirty-Eight Dollars
       and Sixty-Four Cents ($1,238.64) per month, the Court will
       include that in potential income of [Marty].

(Decision on Objections to Magistrate’s Decision, June 17, 2011, pp. 3-4).

       {¶28} In its ruling on Marty’s award of spousal support, the trial court

referred to specific factors contained in R.C. 3105.18(C)(1) to support its decision.

                                        -17-
Case No. 17-11-28


In particular, the trial court concluded it to be both “fair and reasonable” that

Marty “receive some benefit” from Vernon’s continuing income stream due to the

length of the parties’ marriage, the parties’ respective roles with regard to earning

income during the marriage—which resulted in Marty foregoing earning her own

retirement benefits—and the nature of the distribution of the marital assets that

each party is to receive in the divorce. See R.C. 3105.18(C)(1)(d),(e),(m).

       {¶29} First, Vernon contends that the manner in which the trial court

articulated its reasoning for awarding spousal award in terms of finding that Marty

should receive “some benefit from [Vernon’s] continuing income” somehow

suggests the trial court improperly considered Vernon’s future income in

calculating the amount of spousal support to award Marty. However, the evidence

at trial demonstrates that the majority of Vernon’s continuing income is generated

from retirement benefits that he earned while married to Marty. Revised Code

Section 3105.18(C)(1)(a) and (d) specifically permit the trial court consider all

sources of the parties’ income and the parties’ retirement benefits. Moreover, R.C.

3105.18(C)(1)(e) and (m) expressly allow the trial court to consider the duration of

the parties’ marriage and the lost income production capacity of either party that

resulted from that party’s marital responsibilities. In addition, the statute permits

the trial court to consider any other factor it expressly finds to be relevant and




                                        -18-
Case No. 17-11-28


equitable in its determination of an award of spousal support.                                 See R.C.

3105.18(C)(1)(n).

        {¶30} Second, Vernon maintains that the trial court specifically found that

$1,238.64 of potential monthly income derived from an annuity should be

“imputed” to Marty. On appeal, Vernon argues that the trial court either failed to

“impute,” or failed to consider this “imputed income” when it calculated

$1,600.00 per month to be the appropriate amount of spousal support awarded to

Marty. Vernon contends that this “imputed” income combined with the monthly

spousal support award of $1,600.00 per month effectively provides Marty with a

higher standard of living than the one she enjoyed while married to Vernon.

        {¶31} Initially, we note that nowhere in its decision does the trial court use

the word “impute.”2 Rather, the trial court indicated that it would consider the fact

that Marty could generate some monthly income if she invested a portion of the

assets she received in the divorce into an annuity or some other income producing

2
  In cases involving child support, a trial court may find a party voluntarily underemployed or unemployed
and “impute” additional income to the voluntarily underemployed or unemployed party for purposes of
determining the appropriate amount of child support. See R.C. 3119.01; Rock v. Cabral, 67 Ohio St.3d 108
(1993).    There is no similar underemployment or unemployment provision appearing in R.C.
3105.18(C)(1). Rather, R.C. 3105.18(C)(1)(b) requires a court to consider “[t]he relative earning abilities
of the parties” in determining an appropriate level of spousal support. “When considering the relative
earning abilities of the parties in connection with an award of spousal support, Ohio courts do not restrict
their inquiry to the amount of money actually earned, but may also hold a person accountable for the
amount of money a ‘person could have earned if he made the effort.’ ” Seaburn v. Seaburn, Stark App.
No.2004CA00343, 2005-Ohio-4722, ¶ 32; citing Beekman v. Beekman, Franklin App. No. 90AP-780 (Aug.
15, 1991). Therefore, “Ohio courts often impute income to parties who are voluntarily underemployed or
otherwise not working up to their full earning potential.” Id. at ¶ 33. Thus, there may be certain
circumstances in which it is appropriate for a trial court to “impute” income to a party for spousal support
purposes. However, the instant case does not present such a circumstance because neither Marty nor
Vernon has the current ability to be employed due to their age and poor health. Therefore, neither party is
considered voluntarily underemployed or unemployed.

                                                   -19-
Case No. 17-11-28


vehicle. Moreover, contrary to Vernon’s contentions, it is not clear from its ruling

whether the trial court contemplated a specific amount to be considered Marty’s

potential income from possible future investments. Even with the trial court’s

spousal support award of $1,600.00 per month, Marty’s monthly income still falls

short of her monthly expenses by $568.23. Thus, it is apparent that the trial court

did attribute some potential income to Marty in its spousal support calculation.

Furthermore, at the final hearing, Marty testified that receiving a monthly income

which allowed her to meet her monthly expenses of $3,235.00 would provide her

with the same standard of living she enjoyed while she was married to Vernon.

Therefore, we are not persuaded by Vernon’s argument that the trial court’s award

of spousal support permits Marty to live a standard of living in excess of the one

she had during the parties’ marriage.

       {¶32} Third, Vernon argues that the trial court abused its discretion by

attempting to equalize the parties’ incomes because equalization of incomes is not

the goal of a spousal support award. The Supreme Court of Ohio has held that the

goal of spousal support is to reach an equitable result, and the method used in

attaining that goal cannot be reduced to a mathematical formula. Kaechele v.

Kaechele, 35 Ohio St.3d 93, 96 (1988) superseded by statute on other grounds as

stated in Heslep v. Heslep, 7th Dist. No. 825 (June 14, 2000); Bachtel v. Bachtel,

7th Dist. No. 03 MA 75, 2004-Ohio-2807, at ¶ 41. Thus, the trial court “must


                                        -20-
Case No. 17-11-28


consider all the factors listed in [R.C. 3105.18(C)(1) ] and not base its

determination upon any one of those factors taken in isolation.” Kaechele at 96.

       {¶33} Here, nothing in the record indicates that the trial court’s intent was

to equalize the parties’ incomes or that the trial court focused solely upon the

parties’ incomes in ordering spousal support. As previously noted, the trial court

listed several of the factors in R.C. 3105.18(C)(1) in calculating the amount of

spousal support to be awarded to Marty and did not base its determination upon

any one of those factors taken in isolation. Moreover, while similar, the parties’

incomes are not equal after accounting for the annual spousal support award.

Further, although a trial court is not required to equalize incomes, it is not

prohibited from doing so where such a result is reasonable and equitable. Thus,

even if the trial court intended to equalize the parties’ incomes, we cannot find that

such a result was inequitable under the circumstances.

       {¶34} Finally, we observe that Vernon heavily relies on two decisions from

other appellate districts in support of his argument on appeal.

       {¶35} In Seitz v. Seitz, 2d Dist. Nos. 22426, 23698, 2010-Ohio-3655, the

Second Appellate District upheld the determination of the trial court to award no

spousal support to the wife because each party received over a million dollars in

marital assets (in various forms of liquidity), which permitted the wife to earn

between $50,000.00 and $70,000.00 per year. Id. at ¶ 74. The appellate court


                                        -21-
Case No. 17-11-28


further noted that both parties were in an approximately equivalent financial

position in terms of current earned income. Id. The appellate court also found

persuasive the fact the trial court retained jurisdiction over spousal support and,

therefore, could modify the spousal support award if future circumstances

warranted such action. Id. at ¶ 77.

       {¶36} In O’Grady v. O’Grady, 11th Dist. No. 2003-T-0001, 2004-Ohio-

3504, the Eleventh Appellate District upheld the conclusion of the trial court that

the wife was not entitled to a spousal support award due to the fact that she was

capable of working a full-time job, was likely to receive a widow’s pension from

her husband, who was fifteen years her senior, and was set to receive significant

liquid assets as part of the property division in the divorce. Id. at ¶ 83. The trial

court determined, and the appellate court agreed, that the combination of all these

factors did not warrant awarding the wife an award of spousal support. Id. at ¶ 84.

       {¶37} The facts of the Seitz and O’Grady cases are inapposite to the facts in

the case sub judice. Thus, we find these cases to be unpersuasive in resolving the

issues raised by Vernon on appeal. As the evidence in this case establishes, the

parties are not in an equivalent position in terms of current earned income and

Marty is not receiving a portion of the marital assets with the capability of

producing upwards of $70,000.00 in annual income. Moreover, Marty is seventy-

years-old, in poor health and not able to be employed. In addition, the appellate


                                        -22-
Case No. 17-11-28


courts in the decisions discussed above were reviewing whether the trial court

abused its discretion in not awarding spousal support—a determination which is

fundamentally different from deciding whether a specific award of spousal support

is appropriate and reasonable given the parties’ circumstances. Here, both parties

conceded that Marty is entitled to some amount of spousal support. Finally, the

trial court in this case did not retain jurisdiction over the determination of spousal

support. Thus, the award of spousal support cannot be revisited at a later time

upon the parties’ request.

       {¶38} Accordingly, for all the foregoing reasons, we conclude that the

decision of the trial court to increase the magistrate’s award of spousal support to

Marty to $1,600.00 is appropriate and reasonable and, therefore, is not contrary to

law nor does it constitute an abuse of discretion. Vernon’s first and second

assignments of error are overruled.




                             Third Assignment of Error

       {¶39} In his third assignment of error, Vernon claims the trial court erred in

addressing Marty’s objection to the magistrate’s decision. In particular, Vernon

maintains that Marty only objected to the duration of the spousal support award

and did not specifically object to the amount of the magistrate’s spousal support


                                        -23-
Case No. 17-11-28


award. Vernon appears to suggest that the trial court was without authority to

consider and rule upon Marty’s objection insofar as it concerned the amount of

spousal support awarded by the magistrate.

       {¶40} First, in reviewing Marty’s memorandum in support of her objection

to the magistrate’s decision, it is apparent that the vast majority of the ten-page

document solely challenges the amount of spousal support awarded by the

magistrate. Thus, we find that Marty’s objection was specific and stated with

particularity the grounds of her objection and that the trial court did not err in

addressing Marty’s arguments disputing the amount of spousal support awarded to

her in the magistrate’s decision. See Civ.R. 53(D)(3)(b)(ii).

       {¶41} Second, even assuming arguendo that Marty did not specifically

object to the amount of spousal support in her objections to the magistrate’s

decision, the issue is now moot. During the trial court proceedings, Vernon filed a

response to Marty’s objections to the magistrate’s decision, in which he argued

that Marty was not specific in her objections and that the trial court should not

consider her arguments.     Notwithstanding Vernon’s arguments, the trial court

decided to consider Marty’s objection to the amount of spousal support awarded

by the magistrate and subsequently made a ruling on the matter. Once the trial

court decided to hear the objection, the only sanction against Marty for not

objecting with specificity is to preclude her from assigning the trial court’s


                                        -24-
Case No. 17-11-28


disposition of her objection as error on appeal. See Wallace v. Willoughby, 3d

Dist. No. 17-10-15, 2011-Ohio-3008, ¶ 21 citing Civ.R. 53(D)(3)(b)(iv).

However, Vernon, and not Marty, is the party appealing the judgment of the trial

court and, therefore, any argument accusing Marty’s objection of lacking

specificity is now moot. Vernon’s third assignment of error is overruled.

       {¶42} Based on the foregoing, the judgment is affirmed.

                                                              Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr




                                       -25-
