Schuh v. Schuh , 2014 Ohio 4755 ( 2014 )

[Cite as Schuh v. Schuh, 2014-Ohio-4755.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
RUDIGER SCHUH, :
CASE NO. CA2014-01-007
Plaintiff-Appellee, :
OPINION
: 10/27/2014
- vs -
:
PATRICIA SCHUH, :
Defendant-Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR2012-12-1371
The Lampe Law Office, LLC, M. Lynn Lampe, 1248 Nilles Road, Suite 7, Fairfield, Ohio
45014, for plaintiff-appellee
John M. Holcomb, 6 South Second Street, Suite 311, Hamilton, Ohio 45011, for defendant-
appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Patricia Schuh (Wife), appeals a decision of the Butler
County Court of Common Pleas, Domestic Relations Division, awarding her $153 a month in
spousal support.
{¶ 2} After 17 years of marriage, Patricia and Rudiger Schuh (Husband) were
divorced by decree on December 19, 2013. The parties have a son born in 1999. At the
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time of the divorce, Husband was 43 years old and employed as a quality engineer with the
Ford Motor Company, earning an annual income of $93,850.80. Husband also receives an
annual bonus which ranges from $2,500 to $6,000. Husband has a high school diploma,
completed an apprenticeship as an electrician, but does not have an engineering degree or a
college education.
{¶ 3} Wife was 50 years old, is a licensed cosmetologist, and has been a hairdresser
since she was 20 years old. She is self-employed as a hairdresser and a hair salon
owner/operator. The parties bought the salon in 2005. The parties' 2011 joint income tax
return shows that Wife's annual net income from her business is $28,854. Wife does not
deposit her tips into her personal or business bank account, but upon the advice of her
accountant, declares 8 to 12 percent of her receipts as tips on her income tax return. Wife
testified the $28,854 net income included the percentage of tips she claims as income. She
also testified she receives between $20 and $55 a day in tips. Wife does not keep track of
how much she earns in tips a year.
{¶ 4} Marital property and marital debts were divided between the parties. Each
party received 50 percent of the other party's retirement accounts. Because Wife received a
greater share of the marital property and none of the marital debts, equalization of the
property division was accomplished by allocating to Husband the sum of $13,658.01 from
Wife's half share of the net sale proceeds of the marital residence. With regard to their son,
the parties entered into a shared parenting plan, Husband was ordered to pay $840 a month
in child support, and the parties were ordered to equally divide any uncovered medical
expenses for the child.
{¶ 5} By decision filed on October 21, 2013, the trial court awarded Wife spousal
support as follows:
The Court considers most strongly the length of the marriage, the
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disparity between [Husband's] income and [Wife's] income, the
fact that [Wife] will have to obtain her own medical insurance or
close her business to find work with benefits, and the prior
standard of living of the parties.
The Court considers the exchange of child support in
determining the amount of spousal support, and considers the
parties' disparate incomes, even after the exchange of spousal
support. The Court further considers the uncertainty of the
availability and expense of health insurance for [Wife].
The Court finds that an exchange of spousal support is
appropriate.
The trial court also found that (1) the parties were currently earning to their ability; (2)
Husband will accumulate significantly more retirement benefits than Wife; and (3) since the
parties' separation, Wife's standard of living is significantly lower than that of Husband. The
trial court stated it considered the tax consequences of the spousal support award.
{¶ 6} By divorce decree, the trial court ordered Husband to pay Wife $153 a month in
spousal support for 12 years. The trial court retained jurisdiction over both the amount and
duration of spousal support.
{¶ 7} Wife appeals, raising one assignment of error:
{¶ 8} THE TRIAL COURT ERRED IN AWARDING AN INADEQUATE AND
INEQUITABLE AMOUNT OF SPOUSAL SUPPORT FROM APPELLEE TO APPELLANT.
{¶ 9} Wife argues the trial court abused its discretion in awarding her $153 a month
in spousal support. Specifically, Wife first argues the trial court failed to consider the tax
consequences of the spousal support award in violation of R.C. 3105.18(C)(1)(l). Wife
asserts that the spousal support award is "tax-inefficient" because the trial court's decision
favors payment of child support over spousal support, and thus, fails to take advantage of the
differential tax rates of the parties. Wife also argues the trial court abused its discretion in
awarding her such a minimal amount of spousal support given the parties' lengthy marriage,
the great disparity in earnings, Husband's significantly greater retirement benefits through
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employment, and the fact Wife will have to purchase her own health insurance.
{¶ 10} A trial court has broad discretion in determining whether an award of spousal
support is proper based on the facts and circumstances of each case. Ornelas v. Ornelas,
12th Dist. Warren No. CA2011-08-094, 2012-Ohio-4106, ¶ 40; Kunkle v. Kunkle, 51 Ohio
St.3d 64, 67 (1990). Absent an abuse of discretion, a spousal support award will not be
disturbed on appeal. Ornelas at id.{¶ 11} After the division of marital property, a trial court may award reasonable
spousal support to either party in a divorce proceeding. R.C. 3105.18(B). In determining the
nature, amount, and terms of payment and whether the spousal support is "appropriate and
reasonable," the trial court must consider the factors listed in R.C. 3105.18(C)(1). As
applicable here, these factors include the parties' respective incomes, earning abilities, ages,
retirement benefits, educations, assets and liabilities, their standard of living during the
marriage, the duration of their marriage, and the tax consequences of a spousal support
award. R.C. 3105.18(C)(1)(a)-(e), (g)-(i), (l). A trial court is also free to consider any other
factor it deems relevant and equitable. R.C. 3105.18(C)(1)(n); Ornelas at ¶ 41.
{¶ 12} When awarding spousal support, a trial court must indicate the basis for its
award in sufficient detail to enable a reviewing court to determine that the award is fair,
equitable, and in accordance with the law. Peters v. Peters, 12th Dist. Warren No. CA2009-
04-037, 2009-Ohio-5929, ¶ 17, citing Kaechele v. Kaechele, 35 Ohio St.3d 93 (1988). A "trial
court is not required to comment on each statutory factor; the record need only show that the
court considered the statutory factors when making the award." Gentile v. Gentile, 8th Dist.
Cuyahoga No. 97971, 2013-Ohio-1338, ¶ 44.
{¶ 13} Wife first argues the trial court failed to consider the tax consequences of the
spousal support award in violation of R.C. 3105.18(C)(1)(l), and asserts that the spousal
support award is "tax-inefficient."
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{¶ 14} R.C. 3105.18(C)(1)(l) requires a trial court to consider "[t]he tax consequences,
for each party, of an award of spousal support." We find that the trial court considered and
addressed the tax consequences of its spousal support award as required by R.C.
3105.18(C)(1)(l). In its decision, the trial court stated it "completed a FinPlan analysis, and *
* * considered the tax consequences of an order of spousal support," and further stated that
"Spousal support will be taxable as income to [Wife] and deductible to [Husband] for tax
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purposes." Gentile, 2013-Ohio-1338 at ¶ 46. In addition, attached to the trial court's
decision is a document entitled "Split Screen Summary Analysis – Annual" that includes a tax
analysis for both parties, including each party's "Tax Savings from Alimony."
{¶ 15} Notwithstanding Wife's assertion, R.C. 3105.18(C)(1) does not require a
spousal support award to be "tax-efficient," nor does it require a trial court to fashion a
spousal support award in the most tax advantageous manner or in a manner to obtain a net
tax savings. Rather, the statute only requires the trial court to consider the tax consequences
of a spousal support award in conjunction with several other factors. Campbell v. Campbell,
12th Dist. Warren No. CA2009-04-039, 2009-Ohio-6238, ¶ 23 (no factor should be viewed in
isolation; instead, courts must look to the totality of circumstances surrounding the award to
ensure there has been no abuse of discretion). We also note that unlike R.C.
3105.18(C)(1)(l), which only requires a trial court to consider the tax consequences of a
spousal support award, R.C. 3119.82 by contrast requires the trial court to consider "any net
tax savings" in determining which parent may claim the children as dependents for tax
purposes. The lack of similar language in R.C.3105.18(C)(1) undermines Wife's argument in
that regard.
1. "A FinPlan analysis is a computer generated calculation performed by the trial court that determines the
amount of money each spouse contributes to the household." Lumpkin v. Lumpkin, 9th Dist. Summit No. 21305,
2003-Ohio-2841, ¶ 23, fn. 4. Many trial courts in several appellate districts use the FinPlan analysis when
determining spousal and/or child support. Cramblett v. Cramblett, 7th Dist. Harrison No. 05 HA 581, 2006-Ohio-
4615, ¶ 55.
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{¶ 16} In its decision, the trial court noted it "consider[ed] the exchange of child
support in determining the amount of spousal support." Wife states that the trial court first
determined the amount of the spousal support award and then used that amount to calculate
Husband's child support obligation. Wife asserts "this approach ignores the tax
consequences of the [spousal support] award," and notes that "the amount of a child support
award is not a statutory factor in spousal support calculation. Rather, it is an award of
spousal support that is a factor in child support guideline."
{¶ 17} It is difficult to understand the crux of Wife's argument. Wife seemingly argues
that a trial court must calculate spousal support before it can calculate child support.
However, the statutes governing spousal support and child support do not explicitly address
the order in which the support awards must be established. R.C. 3105.18(B) provides that a
trial court may award spousal support "after the court determines the division or
disbursement of property." R.C. 3105.18(B) does not mention child support. However, one
of the factors a trial court must consider in awarding spousal support is "the relative assets
and liabilities of the parties, including * * * any court-ordered payments by the parties." R.C.
3105.18(C)(1)(i). "Child support, as a 'court-ordered payment,' is a relevant factor in
determining spousal support." Glassner v. Glassner, 160 Ohio App.3d 648, 2005-Ohio-1936,
¶ 50 (5th Dist.); see also Cohoon v. Cohoon, 2d Dist. Montgomery No. 17728, 2000 WL
43705 (Jan. 21, 2000) (in determining spousal support, trial court is required to consider child
support obligation); Borer v. Borer, 3d Dist. Seneca No. 13-06-38, 2007-Ohio-3341.
Conversely, line 10 of the child support computation worksheet codified in R.C. 3119.022
allows for income adjustment for any "[a]nnual court-ordered spousal support paid to any
spouse or former spouse," and R.C. 3119.05(B) allows for deduction of any "court-ordered
spousal support actually paid." See also Albright v. Albright, 4th Dist. Lawrence No. 06CA35,
2007-Ohio-3709.
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{¶ 18} Wife also seems to argue that the amount of the spousal support award should
have been greater as it would have benefited both parties. Instead, she asserts,"[b]y
favoring payment of child support over spousal support, the [trial] court has squandered the
possibility that, by taking advantage of the differential tax rates of the parties, Wife could
have realized more net after-tax income without reducing Husband's net after tax income."
{¶ 19} The trial court found that the marginal tax rate for Husband and Wife was 29.7
percent and 18.5 percent respectively. Based upon these tax rates, every additional $1,000
in child support would save Husband $297 in taxes while costing Wife $185 in taxes, for a net
savings of $112 (not including state taxes or consideration of any other tax deductions,
credits, etc. to which the parties may be entitled). Therefore, absent a significant increase in
the spousal support award, any net tax savings by the parties would be minimal.
{¶ 20} In addition, a child support determination "calculated pursuant to the basic child
support schedule and applicable worksheet through the line establishing the actual annual
obligation, is rebuttably presumed to be the correct amount of child support due." Mogg v.
McCloskey, 7th Dist. Mahoning No. 12 MA 24, 2013-Ohio-4358, ¶ 34; Wolf-Sabatino v.
Sabatino, 10th Dist. Franklin No. 12AP-1042, 2014-Ohio-1252 (where the basic schedule
and worksheet apply, the guideline amount is rebuttably presumed to be the correct amount
of child support to be awarded); R.C. 3119.03. Deviating from the trial court's calculation of
the child support amount would have required a finding that the guideline amount was unjust,
inappropriate, and not in the child's best interest. Further, Wife's spousal support is
terminable upon Wife's "remarriage or cohabitation," which events would not terminate the
child support award. Shifting child support in favor of a greater amount of spousal support for
tax purposes would not serve the child's best interest.
{¶ 21} We therefore find that the trial court properly considered the tax consequences
of the spousal support award as required under R.C. 3105.18(C)(1)(l).
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{¶ 22} Wife also argues the trial court abused its discretion in awarding such a minimal
amount of spousal support given the parties' lengthy marriage, the great disparity in earnings,
Husband's significantly greater retirement benefits through employment, and the fact Wife
will have to purchase her own health insurance.
{¶ 23} Upon a thorough review of the record, we find that the trial court did not abuse
its discretion in awarding Wife $153 a month in spousal support. The trial court conducted
an exhaustive analysis of the factors under R.C. 3105.18(C)(1). Specifically, the trial court
strongly considered the length of the parties' marriage, the disparity between the parties'
incomes, the fact Wife will have to obtain her own medical insurance, and the prior standard
of living of the parties. See R.C. 3105.18(C)(1)(a), (b), (d), (e), (g), and (n). We find that the
record supports the trial court's findings under R.C. 3105.18(C)(1).
{¶ 24} We note Wife neither testified nor specified how much spousal support she was
requesting or needed. In addition, other than the fact she currently rents a house for $750 a
month, there was no evidence regarding her current and reasonably anticipated living
expenses. Although she knew she would be required to buy her own health insurance after
the divorce, Wife did not know how much it would cost her as she had not researched the
issue. The record also shows Wife is self-employed as a hairdresser and a hair salon
owner/operator. While she does not currently have renters, she has six vacant chairs in her
salon she could rent to other hairdressers. We note there is no evidence indicating that Wife
could not meet her monthly expenses based solely upon her income, let alone with the
addition of the spousal support award. We further note that the trial court retained
jurisdiction over both the amount and duration of spousal support.
{¶ 25} In light of the foregoing, we find that while the amount of the spousal support
award may be minimal, the trial court did not abuse its discretion in awarding Wife $153 a
month in spousal support for 12 years. See Vertrees v. Vertrees, 2d Dist. Clark No. 06-CA-
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48, 2007-Ohio-2604 (upholding spousal support award of $100 a month despite parties'
lengthy marriage, great disparity in parties' incomes, and fact that wife was six years older
than husband and had significant health issues); Campbell, 2009-Ohio-6238 (upholding
spousal support award of $100 a year for seven years despite parties' lengthy marriage,
husband earning over $180,000, and fact that wife is no longer working following mental
breakdown); Tallman v. Tallman, 6th Dist. Fulton No. F-03-008, 2004-Ohio-895 (upholding
spousal support award of $1 a year for four years and rejecting husband's assertion the
award was an abuse of discretion).
{¶ 26} Wife's assignment of error is overruled.
{¶ 27} Judgment affirmed.
RINGLAND, P.J., and S. POWELL, J., concur.
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