[Cite as Wormsley v. Wormsley, 2014-Ohio-3086.]




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




JIMMIE WORMSLEY,

        PLAINTIFF-APPELLEE,                              CASE NO. 9-14-04

        v.

ROBERT WORMSLEY,                                         OPINION

        DEFENDANT-APPELLANT.




                Appeal from Marion County Common Pleas Court
                                 Family Division
                          Trial Court No. 2013 DR 0120

                                    Judgment Affirmed

                             Date of Decision: July 14, 2014




APPEARANCES:

        Robert C. Nemo for Appellant

        Larry Heiser for Appellee
Case No. 9-14-04


SHAW, J.

      {¶1} Defendant-appellant, Robert Wormsley, Jr. (“Robert”), appeals the

January 2, 2014 judgment of the Marion County Court of Common Pleas, Family

Division, granting the complaint for divorce filed by plaintiff-appellee, Jimmie

Wormsley (“Jimmie”). Robert assigns as error the trial court’s spousal support

award to Jimmie in the amount of $1,500 a month until the death of either party or

upon Jimmie’s remarriage. Robert also appeals the trial court’s order requiring

him to pay Jimmie’s attorney’s fees.

      {¶2} The parties were married on June 7, 1975, and had two children who

are now emancipated adults. Robert worked outside the home during the marriage

while Jimmie sporadically worked part-time jobs but primarily remained in the

home tending the children and household affairs.

      {¶3} On May 7, 2013, Jimmie filed for divorce after almost thirty-eight

years of marriage. Robert subsequently filed an answer and the case proceeded to

discovery.

      {¶4} On October 31, 2013, the parties filed a stipulation which addressed

most of the issues in the case. The only matters that remained to be litigated were

Jimmie’s requests for spousal support and payment of her attorney’s fees by

Robert, and the trial court’s determination of which party was entitled to keep

certain gold chains acquired during the marriage. The trial court held a hearing on


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these outstanding issues, where each party presented evidence in support of their

case.

        {¶5} At the hearing, Robert testified that he is fifty-six years old and has a

high school diploma as the highest level of his education. Robert stated that he

has been employed at General Mills for twenty-two years and works as a bag

packer packing fifty pound bakery mixes. Prior to General Mills, Robert worked

for the Wilson-Bohannon Block Company for ten months and Quaker Oats for

almost fourteen years. Robert testified that he consistently worked overtime—i.e.,

six or seven eight hour shifts a week—throughout the duration of the parties’

marriage. Robert also testified that he worked continuously during the marriage

with the exception of approximately one year when he lost his job at General Mills

in June 2012. Robert explained that he was terminated from his employment due

to failing a drug test. However, after participating in arbitration, Robert was

rehired at General Mills in August of 2013.

        {¶6} Robert also admitted that in the fall of 2012 he liquidated his 401(k),

worth approximately $45,000, without Jimmie’s knowledge and spent all but

$5,000.1 Robert agreed that Jimmie should be awarded some spousal support. He

testified that $600 or $700 seemed to be a “fair” amount. (Tr. 11). Robert

submitted paychecks dating from August 22, 2013 to September 19, 2013 as

1
  In the stipulated division of assets submitted by the parties, Jimmie was given the martial home free and
clear of any claims by Robert and unencumbered by any liens or debts. At the time of the hearing, the
marital home was valued at $45,000—approximately the same amount as the 401(k) liquidated by Robert.

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evidence of his income. His paychecks demonstrated that he earned a base pay of

$20.44 per hour and worked a significant amount of overtime at $30.66 per hour.

       {¶7} Jimmie testified that she is fifty-eight years old and also has a high

school diploma as the highest level of her education. Jimmie recalled that she

worked during the beginning of the marriage at a child care center where their

oldest son also attended. However, their son began to experience health problems

which required her to leave her job at the child care center. Jimmie explained that

throughout the marriage she occasionally had part-time jobs working at minimum

wage. Jimmie testified that since April 6, 2012, she has been employed as a

department manager at Rural King earning $8.66 per hour. Jimmie also submitted

numerous paychecks from her employer as evidence of her income, which

demonstrated that she typically worked between seventy and seventy-nine hours in

a two week pay period. Jimmie stated that her employer does not always give her

forty hours a week despite the fact that she would be willing to work those hours.

       {¶8} Jimmie testified that prior to Robert losing his job in June of 2012 she

received health insurance benefits through Robert’s employment, which covered

the cost of the medications she takes on a regular basis. She explained that she is a

diabetic and suffers from high blood pressure and high cholesterol, and that she

will need to purchase health insurance benefits after the divorce is finalized. She

also testified that she received no financial support from Robert after he regained


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his job at General Mills in August of 2013. Jimmie confirmed that she was

seeking spousal support that would serve to equalize the income between the

parties.

       {¶9} Each party provided similar testimony regarding their standard of

living during the marriage. It was very seldom that they dined at restaurants.

They lived in a modestly priced home, drove older model vehicles, and took

vacations when their children were young, but never as a couple.

       {¶10} On November 8, 2013, the trial court issued a ruling on the contested

issues remaining between the parties.     The trial court calculated the parties’

monthly income and expenses based on the evidence submitted. In assessing

Robert’s income, the trial court averaged the overtime hours from the five

paychecks he submitted as evidence at the hearing.          The trial court “then

annualized his overtime earnings based on the average number of hours at $30.66”

and added this number to his base earning wages of $20.44 per hour to derive an

annual income for Robert of $56,796.63. (Doc. No. 38 at 4). The trial court

attributed an annual income of $16,494.02 to Jimmie based on the evidence she

submitted at the hearing.

       {¶11} The trial court discussed the relevant factors for determining whether

spousal support is appropriate under R.C. 3105.18(A) and (C). Specifically, the

trial court stated the following:


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       The Court finds that an equalization of incomes is a reasonable
       and appropriate approach for this long term marriage given the
       facts and circumstances and the earning abilities of the parties.
       The Court therefore finds that an award of spousal support of
       $1,500.00 per month is reasonable and necessary. The Court
       shall retain jurisdiction to modify the amount of spousal support
       only.

(Doc. No. 38 at 4).

       {¶12} In the same ruling, the trial court discussed a billing statement from

Jimmie’s attorney reflecting fees in the amount of $2,450. The trial court found

the attorney’s fees to be both reasonable and necessary and ordered Robert to be

responsible for paying the fees within sixty days of the date of the final divorce

decree.

       {¶13} On January 2, 2014, the trial court issued its Judgment Entry of

Divorce incorporating its prior ruling on the spousal support and attorney’s fees

matters. With respect to the spousal support payments, the trial court specifically

stated in its Judgment Entry that:

       The obligation of [Robert] to pay such payments to [Jimmie] * *
       * shall end upon the following events (whichever occurs first):
       the death of either party or [Jimmie’s] remarriage. The Court
       shall retain jurisdiction over the amount of spousal support only.

(Doc. No. 39 at 4).

       {¶14} Robert subsequently filed this appeal, asserting the following

assignments of error.



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                        ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       AWARDING APPELLEE $1,500.00 PER MONTH IN
       SPOUSAL SUPPORT.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       ORDERED APPELLANT TO PAY SPOUSAL SUPPORT FOR
       AN INDETERMINATE PERIOD OF TIME.

                       ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ABUSED ITS DISCRETION IN
       AWARDING ATTORNEY’S FEES TO APPELLEE.

                             First Assignment of Error

       {¶15} In his first assignment of error, Robert challenges the trial court’s

award of $1,500 in spousal support. Even though Robert conceded at the hearing

that Jimmie is entitled to some spousal support, he disputes on appeal the amount

the trial court awarded.

       {¶16} In matters relating to spousal support, the “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).

Thus, a spousal support decision is generally left to a trial court’s discretion,

subject to the statutory factors. See R.C. 3105.18(C). “A reviewing court cannot

substitute its judgment for that of the trial court unless, considering the totality of

the circumstances, the trial court abused its discretion.” Kunkle at 67.

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       {¶17} R.C. 3105.18(B) allows trial courts, upon a party’s request and after

property distribution, to award reasonable spousal support.        R.C. 3105.18(C)

provides a list of factors for the trial court to consider in awarding spousal support

and states the following:

       (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;

       (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;



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       (i) 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;

       (j) 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;

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

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

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

       (2) In determining whether spousal support is reasonable and
       in determining the amount and terms of payment of spousal
       support, each party shall be considered to have contributed
       equally to the production of marital income.

       {¶18} In the instant case, Robert contends that the trial court erred when it

included his overtime hours and pay in its calculation of his annual income and

when it attempted to equalize the parties’ incomes based on that figure. Robert

argues that the trial court should have limited its calculation of his annual income

to his base pay of $20.44 per hour at forty hours a week and should not have

considered his overtime because the hours are “not guaranteed.” Robert also

challenges the trial court’s calculation of his annual income on the basis that it was



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drawn from a “small sample” of five paychecks from August 22, 2013 to

September 19, 2013.

      {¶19} First, we are not sympathetic to Robert’s complaint regarding the

trial court’s use of these particular paychecks to determine his annual income

given the fact that these five paychecks are the only documentation of his income

that he chose to submit at the hearing. Second, both Robert and Jimmie testified

that Robert consistently worked overtime hours throughout the course of the

marriage.   Therefore, we do not find the trial court abused its discretion by

including a figure for overtime wages in calculating Robert’s annual income.

      {¶20} We also note that “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.” Arthur v. Arthur, 3rd Dist. No. 17–11–28, 2012–Ohio–1893, ¶ 33. In

its November 8, 2013 ruling on the issue of spousal support, the trial court listed

several of the factors in R.C. 3105.18(C)(1), including the parties’ current

incomes, their relative earning abilities, their ages, Jimmie’s health insurance

expenses, Robert’s retirement benefits, the duration of the marriage, their standard

of living during the marriage, and the fact that Jimmie was mainly a stay-at-home

mother and homemaker who has accrued no retirement benefits from her minimal

employment outside the home. (Doc. No. 38). While the parties’ annual incomes

are similar after the trial court’s spousal support award, it is evident from the


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record that the trial court properly considered the statutory factors in calculating

the amount of spousal support. Consequently, we cannot find the trial court’s

spousal support award to be an abuse of discretion under the circumstances.

                            Second Assignment of Error

       {¶21} In his second assignment of error, Robert argues that the trial court

erred in ordering him to pay spousal support until the death of either party or until

Jimmie remarries insofar as the trial court retained jurisdiction to modify the

amount of the support only. The Supreme Court of Ohio has held “that except in

cases involving a marriage of long duration, parties of advanced age or a

homemaker-spouse with little opportunity to develop meaningful employment

outside the home, where a payee spouse has the resources, ability and potential to

be self-supporting, an award of sustenance alimony should provide for the

termination of the award, within a reasonable time and upon a date certain, in

order to place a definitive limit upon the parties’ rights and responsibilities.”

Kunkle v. Kunkle, 51 Ohio St.3d 64, 69 (1990).

       {¶22} Here, the parties were married for thirty-eight years. Jimmie is fifty-

eight years old and has a high school education. With the exception of a few part-

time jobs, Jimmie did not earn an income until the last year of the marriage when

she separated from Robert. Even though she is currently employed, she is making

a low wage of $8.66 an hour with no benefits. In setting forth the spousal support


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award, the trial court specifically noted the length of the marriage and the earning

abilities of the parties. Under these circumstances, we find no abuse of discretion

in the trial court setting an indefinite period of time for Jimmie to receive spousal

support. Accordingly, Robert’s second assignment of error is overruled.

                                    Third Assignment of Error

        {¶23} In his third assignment of error, Robert argues that the trial court

erred in ordering him to be responsible for paying Jimmie’s attorney’s fees. “ ‘An

award of attorney’s fees in a domestic relations action is committed to the sound

discretion of the trial court.’ ” Cichanowicz v. Cichanowicz, 3d Dist. Crawford

No. 3–13–05, 2013–Ohio–5657, ¶ 92, quoting Flowers v. Flowers, 10th Dist.

Franklin No. 10AP 1176, 2011–Ohio–5972, ¶ 21, citing Stuart v. Stuart, 144 Ohio

St. 289 (1944) (additional citation omitted). “This court will not reverse an award

of attorney fees absent a finding that the trial court abused its discretion.” Id.,

citing Stuart.

        {¶24} On May 7, 2013, Jimmie filed a motion for attorney’s fees requesting

the trial court order Robert to pay her attorney’s fees pursuant to R.C.

3105.73(A).2 In her motion, Jimmie highlighted the parties’ income disparity and

claimed Robert had the ability to pay her attorney’s fees. At the hearing, Jimmie

2
 R.C. 3105.73(A) states: “ In an action for divorce, dissolution, legal separation, or annulment of marriage
or an appeal of that action, a court may award all or part of reasonable attorney’s fees and litigation
expenses to either party if the court finds the award equitable. In determining whether an award is
equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal
support, the conduct of the parties, and any other relevant factors the court deems appropriate.”

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submitted a billing statement of her attorney’s fees as an exhibit. The parties

agreed the fees were reasonable and necessary, however Robert maintained that he

should not be held responsible for the payment of Jimmie attorney’s fees.

       {¶25} In its November 8, 2013, ruling ordering Robert to pay Jimmie’s

attorney’s fees, the trial court specifically found the $2,450 in fees reflected on the

billing statement provided by Jimmie’s attorney to be reasonable and necessary.

Nor can we find anything in the record to indicate that the award of attorney’s fees

was unfounded, contrary to law, or otherwise improper. Accordingly, we do not

find the trial court abused its discretion in ordering Robert to pay Jimmie’s

attorney’s fees. Therefore, Robert’s third assignment of error is overruled.

       {¶26} For the foregoing reasons, the assignments of error are overruled and

the judgment is affirmed.

                                                                 Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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