Gross v. Gross ( 1985 )

Although I concur in the overruling of the second assignment of error and the sustaining of the fifth and sixth assignments of error, I must respectfully dissent from the overruling of the third and fourth assignments of error and of the first assignment of error, except insofar as it presents the same issue raised by the second assignment of error.

In light of the decision of the Supreme Court in the first appeal (Gross v. Gross [1984], 11 Ohio St. 3d 99), the second assignment of error is not well-taken. However, the third and fourth assignments of error should be well-taken. The first assignment of error essentially encompasses the same issues as raised by the other assignments of error and should be well-taken except with respect to the issue of division of property.

At the trial prior to the first appeal, defendant admitted that his 1979 income was $252,409, and his income for 1980 was $257,001, but stated he did not know the amount of his 1981 income, but that his salary alone was $150,000. After remand following reversal upon the first appeal, defendant's 1981 income tax return was stipulated as evidence, which indicates defendant's income for that year to be $359,887, including his salary of $216,539. Under the total circumstances, a sustenance alimony award of only $2,500 per month is unreasonable and unconscionable. See Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. The sustenance alimony award is only approximately eight percent of defendant's total income and less than fourteen percent of his salary. Since the amount of the sustenance alimony will not be taxable to defendant, there is only a minimal effect upon his after-tax income, in light of this apparent high tax bracket as indicated by his 1981 tax return.

Without belaboring the point by extensive discussion of the evidence, in my view, the absolute minimum sustenance alimony award that would be reasonable and conscionable under the evidence adduced would be approximately $50,000 per year and at least $4,000 per month. Although the evidence easily would have justified a sustenance alimony award of $100,000 per year or more, there is a range of reasonableness, and a trial court does not abuse its discretion unless the amount awarded is less than the minimum or greater than the maximum that would fall within this extended range of reasonableness as demonstrated by the evidence.

Although at the original trial plaintiff did present evidence of her minimum needs as being $3,250 per month, such evidence did not take into account some expense factors commensurate with the standard of living established during the marriage and did not take into consideration the income taxes plaintiff will be required to pay upon any sustenance alimony award. Following remand, plaintiff presented an affidavit of her contention as to the amount of income needed to maintain the standard of living established during the marriage, indicating monthly expenses of $6,528 (without provision for income taxes), which affidavit the trial court refused to consider.

A sustenance alimony award of $4,000 per month, the minimum I find to be reasonable, would represent less than fourteen percent of defendant's total income and only twenty-two percent of the salary portion of his income, with a greatly lesser effect upon his after-tax income. On the other hand, such an award would (if she obtains the limited employment for which she is qualified), enable plaintiff to minimize the reduction in her standard of living from the opulent standard of living established during the marriage, one of the controlling factors set forth in R.C.3105.18. In addition, the court should not ignore the fact that plaintiff has very limited earning ability, no prospective retirement benefits, and no expectancies or inheritances, as well as the fact that she has very limited assets, while defendant's assets approximate $8,000,000, all factors required to be considered by R.C. 3105.18.

As to attorney fees, the trial court correctly noted that an award of attorney fee expenses constitutes an award for maintenance and, thus, is within the purview of the Supreme Court mandate on remand, even though not specifically mentioned. However, the trial court refused to award attorney fees, indicating it had "considered the expense the wife had incurred in making its award of alimony." There is no explanation, however, of how plaintiff can afford to pay the more than $60,000 accumulated legal expenses from the relatively meager award of $2,500 per month, the amount of the legal fees representing more than two years' of the total pre-tax amount of sustenance alimony awarded. Had the trial court awarded sustenance alimony of $100,000 per year, then, perhaps, it would have been reasonable to make no award for legal expense. However, under the circumstances involved, and the less than reasonable sustenance alimony award, it is unreasonable and unconscionable for the trial court to make no award for legal expenses. Nor is such action justified by reference to the so-called retroactive effect of the alimony award to the date of the divorce decree. In the interim, plaintiff has had to find means of support, and there is evidence that she was required to sell some of her comparably small amount of assets in order to support herself.

Although the amounts involved in this case are large, an award of sustenance alimony and legal expenses must be considered in light of the assets and earning abilities of the parties, and their opulent standard of living, not by that which would be reasonable in the average case or one involving persons moderately affluent.

Accordingly, I would sustain the third and fourth assignments of error and remand the cause to the trial court for redetermination.