Lindenmayer v. Lindenmayer ( 2012 )

[Cite as Lindenmayer v. Lindenmayer, 2012-Ohio-3172.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VERNON LINDENMAYER JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 12-CA-00012
STEPHANIE LINDENMAYER
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Domestic Relations
Division Case No. 08 DR 01286 CRB
JUDGMENT: Affirmed in part; Reversed in part, and
Remanded
DATE OF JUDGMENT ENTRY: July 12, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
CINDY RIPKO STEPHANIE LINDENMAYER, PRO SE
35 S. Park Pl., #201 PO Box 1241
Newark, Ohio 43055 Hebron, Ohio 43025
Licking County, Case No. 12-CA-00012 2
Hoffman, P.J.
{¶1} Plaintiff-appellant Vernon C. Lindenmayer (“Husband”) appeals the
February 7, 2012 Decree of Divorce (Remand) entered by the Licking County Court of
Common Pleas, Domestic Relations Division, which ordered him to pay spousal support
in the amount of $500/month to defendant-appellee Stephanie L. Lindenmayer (“Wife”),
following this Court’s remand.
STATEMENT OF THE FACTS AND CASE
{¶2} Husband and Wife were married in April, 1997. Two children were born of
the marriage.
{¶3} In August, 2008, the Licking County Court of Common Pleas, Juvenile
Division, granted emergency shelter care custody of the parties’ two children to Licking
County Children Services (“LCCS”) in Licking County Juvenile Court Case Nos. C2008–
0639 and C2008–0640. On October 27, 2010, the juvenile court granted legal custody
of both children to Husband and terminated LCCS's involvement.
{¶4} While the juvenile matter was proceeding, Husband filed a Complaint for
Divorce in the Licking County Court of Common Pleas, Domestic Relations Division, on
September 17, 2008. The matter proceeded to a full evidentiary hearing on May 24,
2010, at which Wife argued her case pro se.
{¶5} On July 8, 2010, prior to the trial court’s issuing the divorce decree, Wife
filed a Petition in Bankruptcy, which resulted in a stay of the divorce proceedings. After
the bankruptcy was discharged, the trial court reactivated the instant action. The trial
court scheduled a status hearing on January 11, 2011, at which Wife appeared with
Licking County, Case No. 12-CA-00012 3
counsel. The trial ordered the parties to submit respective proposed judgment
entries/decrees.
{¶6} The trial court issued a final decree of divorce on March 8, 2011. The
court, inter alia, divided marital property and debt, ordered no spousal support for either
party, and ordered that jurisdiction over the children would remain with the juvenile
court. Wife filed a timely notice of appeal. This Court remanded the matter to the trial
court on the sole issue of spousal support. Lindenmayer v. Lindenmayer, 5th App. No.
11CA43, 2011 -Ohio- 5511.
{¶7} Upon remand, the trial court ordered Husband to pay Wife spousal
support in the amount of $500/month. The trial court noted, “[s]aid order shall continue
as a permanent order or until the death of either party.” February 7, 2012 Decree of
Divorce (Remand) at 8. The trial court expressly retained jurisdiction over the issue of
spousal support in both amount and duration.
{¶8} It is from the February 7, 2012 Decree of Divorce (Remand) Husband
appeals, raising the following assignments of error:
{¶9} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
SPOUSAL SUPPORT TO APPELLEE, BOTH AS TO AMOUNT, DURATION, AND
CONDITIONS FOR RESERVATION OF JURISDICTION.
{¶10} “II. THE TRIAL COURT’S AWARD OF SPOUSAL SUPPORT, BOTH AS
TO AMOUNT, DURATION, AND CONDITIONS FOR RESERVATION OF
JURISDICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
Licking County, Case No. 12-CA-00012 4
I, II
{¶11} Husband’s assignments of error are interrelated and shall be addressed
together. In his first assignment of error, Husband maintains the trial court abused its
discretion in awarding spousal support and as to the amount, duration, and conditions
thereof. In his second assignment of error, Husband challenges the weight of the
evidence relative to the award of spousal support, including the amount, duration, and
conditions.
{¶12} A trial court's decision concerning spousal support may be altered only if it
constitutes an abuse of discretion. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554
N.E.2d 83. An abuse of discretion connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶13} R.C. 3105.18(C)(1)(a) through (n), which sets forth the factors a trial court
is to consider in determining whether spousal support is appropriate and reasonable
and in determining the nature, amount, terms of payment, and duration of spousal
support, provides:
{¶14} “(C)(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
Licking County, Case No. 12-CA-00012 5
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; (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;
Licking County, Case No. 12-CA-00012 6
(n) Any other factor that the court expressly finds to be
relevant and equitable.”
{¶15} For the same reasons we remanded the issue of spousal support in Wife’s
prior appeal, we find the trial court did not abuse its discretion in awarding Wife spousal
support in the amount of $500/month, and we further find the amount of the award was
not against the manifest weight of the evidence. Husband, born in 1972, earns
approximately $71,500/year and also receives $9,000/year in Social Security benefits
on behalf of the parties' two children. Wife, born in 1966, worked until 1996, as a
registered nurse. She currently receives $16,752/year in Social Security disability
benefits for a mental-health diagnosis. Wife was a stay-at-home parent after the first
child was born until LCCS intervened in 2008. She has no investment or retirement
accounts. Pursuant to the divorce decree, Husband was awarded his 401(k) of $10,000
in the property division. The duration of the marriage was approximately 11 years, from
April 24, 1997, until September 17, 2008, as such it was a marriage of some significant
length. Husband was awarded, inter alia, the house and the Audi, although the loan
balances exceeded the market value of both assets.
{¶16} The purpose of spousal support is “for sustenance and support of the * * *
former spouse.” Robbins v. Robbins, Clark App. No. 06CA0136, 2008-Ohio-495, 2008
WL 344143, ¶ 22, citing R.C. 3105.18(A). Following the original decree of divorce, Wife
was left at a near-poverty level. She lost her stake in the marital home, has no
retirement money, and is left, in her mid-forties, with few personal possessions.
Although not the result of the trial court's orders, she has lost custody of her children,
gone through a bankruptcy, and faces the task of treating her bipolar condition
Licking County, Case No. 12-CA-00012 7
sufficiently to enable re-entry into the workforce, from which she has been absent for
over 15 years. Considering the significant disparity in the parties' incomes and the
limitations on Wife's occupational and economic situation in the foreseeable future, we
find the trial court’s order of $500/month as spousal support was not an abuse of
discretion and was not against the manifest weight of the evidence.
{¶17} We do, however, find the trial court’s spousal support order requires some
clarification. The trial court indicated the “[spousal support] order shall continue as a
permanent order or until the death of either party.” February 7, 2012 Decree of Divorce
(Remand) at 8. In our first Opinion, we instructed the trial court to reserve jurisdiction
over spousal support. We find the trial court’s use of the word “permanent” to describe
the award is a mischaracterization. After noting the award was “a permanent order”, the
trial court, in the next sentence of the decree, expressly retained jurisdiction over the
issue of spousal support in both amount and duration. Thus, it is clear the trial court
meant for the spousal support award to continue until further order of the court, not to
continue indefinitely as the word “permanent” implies.
{¶18} Husband also asserts the trial court should have included “remarriage”
and “cohabitation” as conditions for the termination of the spousal support award. We
agree with Husband the trial court should have included “remarriage” as a condition for
the termination of the support order. However, although Wife was cohabiting at the time
of the final hearing, we do not find “cohabitation” should necessarily mandate
termination of spousal support. The trial court was aware of Wife’s living arrangements
and factored such when it determined the amount of support.
Licking County, Case No. 12-CA-00012 8
{¶19} Husband’s first and second assignments of error are sustained in part,
and overruled in part.
{¶20} The judgment entry of the Licking County Court of Common Pleas,
Domestic Relations Division, is affirmed in part; reversed in part; and remanded to the
trial court to reissue the decree of divorce to include “remarriage” as a condition for
termination of spousal support.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ John W. Wise _____________________
HON. JOHN W. WISE
Licking County, Case No. 12-CA-00012 9
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VERNON LINDENMAYER :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
STEPHANIE LINDENMAYER :
:
Defendant-Appellee : Case No. 12-CA-00012
For the reasons stated in our accompanying Opinion, the judgment entry of the
Licking County Court of Common Pleas, Domestic Relations Division, is affirmed in part;
reversed in part; and remanded to the trial court to reissue the decree of divorce to
include “remarriage” as a condition for termination of spousal support. Costs to
Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ John W. Wise _____________________
HON. JOHN W. WISE