Sinkovitz v. Sinkovitz ( 2016 )

[Cite as Sinkovitz v. Sinkovitz, 2016-Ohio-2861.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
DELIA (DEE) M. SINKOVITZ, : Case No. 15CA18
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
PAUL SINKOVITZ, :
Defendant-Appellant. : RELEASED 05/02/2016
APPEARANCES:1
Paul Sinkovitz, Lancaster, Ohio, pro se appellant.
Hoover, J.
{¶ 1} This is an appeal from a judgment entered by the Hocking County Common Pleas
Court, Domestic Relations Division, awarding plaintiff-appellee, Delia (Dee) M. Sinkovitz
(“appellee”), a divorce on the grounds of gross neglect of duty and extreme cruelty. The
judgment also sets forth the division of property, payment of financial obligations, spousal
support, attorney’s fees, court costs, and issues a final divorce decree.
{¶ 2} On appeal, defendant-appellant Paul Sinkovitz (“appellant”), asserts in his first
assignment of error that the trial court erred in denying his motion that he, a prisoner, be
transported to the court to participate in the final divorce hearing, or in the alternative, that he be
1 Appellee has not filed an appellate brief in this appeal. If an appellee fails to file an appellate brief, App.R. 18(C)
authorizes us to accept an appellant’s statement of facts and issues as correct, and then reverse a trial court’s
judgment as long as the appellant’s brief reasonably appears to sustain such action. See State v. Miller, 110 Ohio
App.3d 159, 161–162, 673 N.E.2d 934 (4th Dist.1996). In other words, an appellate court may reverse a judgment
based solely on a consideration of an appellant’s brief. See Helmeci v. Ohio Bur. of Motor Vehicles, 75 Ohio App.3d
172, 174, 598 N.E.2d 1294 (6th Dist.1991); Ford Motor Credit Co. v. Potts, 28 Ohio App.3d 93, 96, 502 N.E.2d
255(10th Dist.1986); State v. Grimes, 17 Ohio App.3d 71, 71–72, 477 N.E.2d 1219 (12th Dist.1984). In the case at
bar, despite appellee’s failure to file an appellate brief, we will consider the entire record and will not dispose of this
case based solely on consideration of appellant’s brief.
Hocking App. No. 15CA18 2
permitted to participate via telephone. First, appellant, as an incarcerated prisoner, had no
absolute due process right to attend the final divorce hearing. Moreover, because he was
represented by counsel at the final divorce hearing, and because he was permitted to present his
deposition testimony to the trial court, the trial court did not err in declining his request for
telephone participation. We thus overrule appellant’s first assignment of error.
{¶ 3} In his second assignment of error, appellant contends that the trial court abused its
discretion in ordering him to pay a portion of appellee’s attorney’s fees and costs. However, a
review of the record in this case reveals numerous and oftentimes frivolous filings by the
appellant. These filings prolonged litigation and contributed to appellee’s attorney’s fees.
Therefore, we cannot say the trial court abused its discretion in ordering the partial payment of
appellee’s attorney’s fees and costs. We overrule this assignment of error.
{¶ 4} Appellant claims in his third assignment of error that the trial court erred in
awarding appellee spousal support. Because the R.C. 3105.18(C)(1) factors support the award,
we cannot find that the trial court abused its discretion. Thus, we overrule his third assignment of
error.
{¶ 5} In his fourth assignment of error, appellant argues that the trial court's property
division constituted an abuse of discretion. Upon review, it is clear that the trial court divided the
marital assets and liabilities equally; and this division is reasonable and equitable. We overrule
his fourth assignment of error.
{¶ 6} In his fifth assignment of error, appellant contends that the trial court erred by
failing to distinguish between the marital property and separate property of the parties, and by
failing to place a value on the items of marital property. Because appellant failed to raise these
Hocking App. No. 15CA18 3
specific arguments when he filed his objections to the magistrate’s decision, he may not raise
them for the first time on appeal. Consequently, he has waived the issues for appellate review.
Moreover, he does not claim or establish plain error. Appellant’s fifth assignment of error is
overruled.
{¶ 7} Therefore, having overruled all of appellant’s assignments of error, we affirm the
judgment of the trial court.
I. Facts and Procedural Posture
{¶ 8} Appellant and appellee married in October 1989. Two children were born as issue
of the marriage. Both children are now adults.
{¶ 9} Appellant was jailed in November of 2012 after he choked appellee and fired a gun
at appellee. Appellant was eventually convicted of felonious assault with a gun specification and
of domestic violence. He was sentenced to serve an aggregate of 7 years in prison.
{¶ 10} Appellee commenced the action below on February 11, 2013, seeking a divorce
from appellant, an equitable division of property, and an award of attorney’s fees. On February
28, 2013, appellee filed an amended complaint adding a claim for spousal support. Appellant
was incarcerated during the proceedings below; and he has remained incarcerated throughout this
appeal.
{¶ 11} During the pendency of the case below, appellant filed numerous motions related
to the divorce, including a motion to make alternative appearance. Through the motion to make
alternative appearance appellant requested that he be allowed to appear at the final divorce
hearing via telephone. The trial court denied the motion. Later, after the final divorce hearing had
Hocking App. No. 15CA18 4
been continued to a later date, and after he had acquired legal counsel for purposes of the final
divorce hearing, appellant filed a motion seeking permission to appear at the final divorce
hearing and for an order of transport from the Southeastern Correctional Institute to the trial
court. The trial court denied the motion via judgment entry, but the entry informed appellant’s
counsel that he could take appellant’s deposition for use at the hearing. Appellant was, in fact,
deposed by his counsel and a transcript of the deposition was filed with the trial court prior to the
final divorce hearing.
{¶ 12} The final divorce hearing was held before the magistrate on October 27, 2014.
Appellant was not present at the hearing, but was represented by counsel. Appellee was present
and was represented by counsel. At the hearing the trial court heard testimony from appellee,
from witnesses of both parties, and examined and admitted certain exhibits presented by both
parties.
{¶ 13} In January 2015, the magistrate issued a decision granting appellee a divorce
based on extreme cruelty and gross neglect of duty. The magistrate also found that the parties
owned a substantial amount of real estate in Hocking County that was purchased during the
marriage. However, the magistrate found that the parcels of real estate were in poor condition
and were encumbered by various liens. The magistrate also found that the parties own seven oil
and gas wells, but noted that the value of the wells were speculative because “there were no
production records available and they may need to be plugged.” The magistrate noted that after
plugging the wells, the remaining equipment “may net the parties [between] $20-25,000.”
Finally, the magistrate found that there were a number of buildings on the parcels of land owned
by the parties that are “stuffed full” of personal property acquired during the marriage.
Furthermore, the magistrate found that numerous “junk vehicles” and other assorted items are
Hocking App. No. 15CA18 5
littered across the parcels of property, and that much of those items have no value and would
need to be hauled away.
{¶ 14} In addition to granting appellee a divorce and enumerating the findings of fact
described above, the magistrate’s decision also set forth a division of property and financial
obligations. The magistrate determined that appellant’s military pension was separate property
earned by appellant prior to the marriage. He also determined that any coins found on the
property were the separate property of appellant. However, the magistrate determined that “all
other property, the land, oil wells, accounts, and personal property, and debts * * * [were]
marital property and debts * * * acquired during the marriage”. The magistrate then determined
that given the condition and speculative value of the property, the most equitable way to
determine value and distribute any equity to the parties would be by sale of the property. Thus,
the magistrate ordered that the land, buildings, and wells be sold by a realtor of appellee’s
choosing; and if they could not be sold within six months, as is, then they should be sold at
auction. The magistrate also ordered that the remaining marital property be sold at auction. The
magistrate also devised a method that would allow the parties to retain certain items of personal
property prior to the auction of the items. Specifically, the magistrate ordered as follows:
14 days prior to an auction of the personal property, the wife and any other
person(s) she chooses shall meet with counsel for the defendant and any person(s)
he and his client choose to pick personal property they wish to keep. A coin shall
be flipped by Husband’s counsel to decide who picks first. Heads, Husband’s
representative chooses first, tails Wife chooses first. They shall alternate until
they have picked up to a 100 items. If one stops short of 100 items, then the other
can continue to pick up to 100 items. The items shall be removed prior to the
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auction or are subject to sale in the auction. Lists of the items picked and removed
prior to auction shall be compiled with one copy filed with the Court of each list
for the record[.]
The magistrate also ordered that all proceeds from the sale of the marital property should be used
to pay marital debts, and any remaining equity after the payment of debts was to be equally split
by appellant and appellee. With regards to retirement, the magistrate determined that each party
should keep their respective social security benefits; and that besides the previously mentioned
military pension, no other pension or accounts existed.
{¶ 15} With regards to spousal support, the magistrate determined, after a lengthy written
analysis, that an award was warranted and ordered appellant to pay appellee $600 a month for an
indefinite period of time. The magistrate also ordered that appellant pay appellee $2,500 in
attorney’s fees and $1,500 in costs/fees. In awarding attorney’s fees and costs, the magistrate
noted appellant’s uncooperative attitude that resulted in prolonged litigation.
{¶ 16} Appellant filed objections to the magistrate’s decision with a supporting
memorandum. Specifically, appellant raised the following objections: (1) the magistrate erred in
awarding appellee spousal support of $600 per month; (2) the magistrate erred in ordering the
sale of all marital property because he is incarcerated and cannot retrieve items of personal
property per method prescribed by magistrate; (3) the magistrate decision “is a total disregard of
fairness unprecedented” because appeals of his criminal conviction remained unresolved; and (4)
the magistrate erred by awarding appellee attorney’s fees. Appellant also filed a motion to
modify the spousal support award, but the trial court denied the motion.
Hocking App. No. 15CA18 7
{¶ 17} In June 2015, the trial court denied appellant’s objections to the magistrate
decision. Also in June 2015, the trial court entered a final divorce decree granting the parties a
divorce based on extreme cruelty and gross neglect of duty. The final divorce decree is very
similar to the magistrate’s decision and sets forth an identical division of property, payment of
financial obligations, determination of spousal support, and determination of attorney’s
fees/costs. The final divorce decree also indicated that the trial court adopted and fully approved
the magistrate’s decision.
{¶ 18} This appeal ensued.
II. Assignments of Error
{¶ 19} On appeal, appellant asserts five assignments of error for review:
First Assignment of Error:
The Trial Court erred in not granting Defendants (sic) motion to be present at the
Divorce Hearing of this case via telephone or video conference.
Second Assignment of Error:
Whether trial Court abused its discretion in awarding Defendant (sic) $4,000 in
attorney fees and costs. The fees are arbitrary and unreasonable in the
circumstances.
Third Assignment of Error:
Whether trial court committed an abuse of discretion when it awarded Appellee
Spousal Support in lieu of an excessive distribution of the marital property.
Fourth Assignment of Error:
Whether the trial court abused its discretion when it failed to divide marital
property equally as required pursuant to R.C. 3105.171.
Fifth Assignment of Error:
Whether the trial court abused its discretion in determining and dividing
premarital property.
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III. Law and Analysis
{¶ 20} Analysis of appellant’s assignments of error will be conducted in logical rather
than numerical order.
A. Appellant’s Appearance at the Final Divorce Hearing
{¶ 21} In his first assignment of error, appellant contends that the trial court erred in
denying his motion to convey him from prison to the trial court for the final divorce hearing or,
in the alternative, his motion to participate in the hearing by telephone conference. He argues
that the proceedings below were “highly unfair and abusive”, and had he been able to participate
at the final divorce hearing he “could have rendered information vital to [the] defense of his
property, pension and payment of financial obligations”, including testimony regarding “the
accurate market value of his property”.
{¶ 22} “ ‘As an incarcerated prisoner, [appellant] had no absolute due process right to
attend a civil trial to which he was a party.’ ” Pryor v. Pryor, 4th Dist. Ross No. 09CA3096,
2009-Ohio-6670, ¶ 29, quoting Lopshire v. Lopshire, 11th Dist. Portage No. 2008-P-0034, 2008-
Ohio-5946, ¶ 35. “ ‘There is no support in the Constitution or in judicial precedent for the
proposition that a prisoner has an absolute due process right to attend the trial of a civil action to
which he is a party.’ ” Rowe v. Stillpass, 4th Dist. Lawrence No. 06CA1, 2006-Ohio-3789, ¶ 21,
quoting Matter of Vandale, 4th Dist. Washington No. 92CA31, 1993 WL 235599, *2 (June 30,
1993). “ ‘A ruling on the request of an incarcerated criminal to prosecute a * * * civil action by
requiring penal authorities to transport him to a preliminary hearing or trial rests within the
sound discretion of the trial court.’ ” Abuhilwa v. Board, 4th Dist. Pickaway No. 08CA3, 2008-
Ohio-5326, ¶ 7, quoting Mancino v. City of Lakewood, 36 Ohio App.3d 219, 221, 523 N.E.2d
332 (8th Dist.1987). An abuse of discretion connotes that the court’s attitude is arbitrary,
Hocking App. No. 15CA18 9
unreasonable, or unconscionable. Martindale v. Martindale, 4th Dist. Athens No. 14CA30, 2016-
Ohio-524, ¶ 35, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 23} Here, while the trial court did not permit appellant to physically attend the final
divorce hearing, it did permit appellant the opportunity to present deposition testimony. In fact,
appellant was deposed, a transcript of his deposition was filed with the trial court, and a review
of the record indicates that the trial court considered the deposition testimony when making its
final rulings. We also disagree with appellant’s contention that he was not afforded the
opportunity to testify in regards to the value of his property, pension, and financial obligations. A
review of the deposition transcript reveals that appellant did address and place values on the real
estate and personal property. He also testified, to the best of his ability, regarding the financial
obligations of the parties and the value of his pension.
{¶ 24} In his appellate brief, appellant relies upon Shepard Grain Co. v. Creager, 160
Ohio App.3d 377, 2005-Ohio-1717, 827 N.E.2d 392 (2d Dist.), Laguta v. Serieko, 48 Ohio
App.3d 266, 549 N.E.2d 216 (9th Dist.1988), and Elkins v. Elkins, 12th Dist. Clermont No.
CA98-03-019, 1999 WL 939 (Jan. 4, 1999), for the proposition that “[w]hen prisoners are
involved in civil actions in Courts and the Court does not find it appropriate to transport the
prisoner to the Courthouse, a trial Court should consider innovative ways for the prisoner to
participate in the action, such as telephone conference calls, rather than rendering judgment
against the prisoner, especially if the prisoner suggest an alternative means of participation.”
Appellant’s Brief at pp. 3-4; see also Creager at ¶ 24, citing Laguta and Elkins (setting forth a
nearly identical proposition of law). However, Creager, Laguta, and Elkins are factually
distinguishable from the case sub judice. In those cases, the prisoners were not represented by
counsel at any stage of the proceedings and were not provided an alternative means of presenting
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evidence. Meanwhile, in the present case, appellant was represented by counsel at the final
divorce hearing, and as already discussed, appellant’s deposition testimony was presented to the
trial court per the trial court’s suggestion. Given these circumstances, appellant’s reliance on
Creager, Laguta, and Elkins is misplaced.
{¶ 25} In light of the foregoing, we find that the trial court did not abuse its discretion in
denying appellant’s motion to convey or in denying his motion to attend via telephone
conference. Appellant’s first assignment of error is accordingly overruled.
B. Marital Versus Separate Property and Valuation of Property
{¶ 26} In his fifth assignment of error, appellant contends that the trial court erred by
failing to distinguish between the marital property of the parties and the separate property of the
parties. Appellant also contends, through his fifth assignment of error, that the trial court erred by
failing to value each item of marital property.
{¶ 27} “Under R.C. 3105.171(B), the trial court must determine what constitutes marital
property and what constitutes separate property.” Burriss v. Burriss, 4th Dist. Lawrence Nos.
09CA21 and 10CA11, 2010-Ohio-6116, ¶ 22. This is so because “the court shall disburse a
spouse’s separate property to that spouse.” R.C. 3105.171(D). Furthermore, “[b]efore a trial
court can distribute property, the court must value that property. Indeed, a trial court must place a
monetary value on every contested asset of the parties in a divorce proceeding.” Burriss at ¶ 27.
{¶ 28} “A party forfeits or waives the right to challenge the trial court’s adoption of a
factual finding or legal conclusion unless the party objects in accordance with Civ.R.
53(D)(3)(b).” Faulks v. Flynn, 4th Dist. Scioto No. 13CA3568, 2014-Ohio-1610, ¶ 17, citing
Civ.R. 53(D)(3)(b)(iv); State ex rel. Muhammad v. State, 133 Ohio St.3d 508, 2012–Ohio–4767,
Hocking App. No. 15CA18 11
979 N.E.2d 296, ¶ 3 (appellant waived claim on appeal by failing to specifically raise claim in
his objections to the magistrate’s decision in the trial court); Liming v. Damos, 4th Dist. Athens
No. 08CA34, 2009–Ohio–6490, ¶ 14.
{¶ 29} “Under Civ.R. 53(D)(3)(b)(i), a party must file objections within 14 days of the
filing of the magistrate’s decision.” Faulks at ¶ 18. “The objections must be ‘specific and state
with particularity all grounds for objection.’ ” Id., quoting Civ.R. 53(D)(3)(b)(ii). “For objections
to findings of fact, they must be ‘supported by a transcript of all the evidence submitted to the
magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available.’
” Id., quoting Civ.R. 53(D)(3)(b)(iii). “ ‘Except for a claim of plain error, a party shall not assign
as error on appeal the court’s adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).’ ”
Id., quoting Civ.R. 53(D)(3)(b)(iv). “ ‘In essence, the rule is based on the principle that a trial
court should have a chance to correct or avoid a mistake before its decision is subject to scrutiny
by a reviewing court.’ ” Liming at ¶ 14, quoting Barnett v. Barnett, 4th Dist. Highland No.
04CA13, 2008–Ohio–3415, ¶ 16.
{¶ 30} In his objections to the magistrate’s decision, appellant did not raise the issues
now raised on appeal, i.e. the issues regarding the characterization of property as either marital or
separate, and the valuation of the marital property. Thus, he forfeited or waived this claim,
except for plain error. Civ.R. 53(D)(3)(b)(iv).
{¶ 31} “In appeals of civil cases, the plain error doctrine is not favored and may be
applied only in the extremely rare case involving exceptional circumstances where error, to
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which no objection was made at the trial court, seriously affects the basic fairness, integrity, or
public reputation of the judicial process, thereby challenging the legitimacy of the underlying
judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997),
syllabus.
{¶ 32} Here, appellant does not acknowledge his failure to raise these issues in his
objections to the magistrate’s decision; and he does not assert plain error. Moreover, while he
makes a blanket assertion in his appellate brief that the trial court “never considered the separate
property that the Appellant acquired prior to his marriage to the Appellee”, a review of the final
divorce decree suggests otherwise. For instance, in the final divorce decree the trial court ordered
that “[a]ny coins found on the property shall be [appellant’s] separate property.” Thus, it appears
that the trial court did consider whether any of the property was separate property. We also note
that appellant does not cite any record evidence in support of his argument, nor has he identified
any items of property he alleges is separate property. See App.R. 16(A)(7) (“The appellant shall
include in its brief * * * [a]n argument containing the contentions of the appellant with respect to
each assignment of error presented for review and the reasons in support of the contentions, with
citations to the authorities, statutes, and parts of the record on which appellant relies.”). Thus, it
is unclear what property appellant even contends was wrongfully classified. Finally, with regards
to his valuation argument, because the marital property was ordered to be sold and the proceeds
to be used to satisfy marital debt, and any remaining proceeds to be split equally among the
parties, we fail to see how the trial court’s failure to value the property seriously affects the basic
fairness, integrity, or public reputation of the judicial process.
{¶ 33} Because appellant has not established plain error in the trial court’s property
determinations, we overrule his fifth assignment of error.
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C. Property Division
{¶ 34} In his fourth assignment of error, appellant contends that the trial court erred by
rendering an inequitable division of marital property. In support of this assignment of error,
appellant again argues that had he been able to appear at the final hearing via telephone or other
means he would have been able to give a more accurate value of the property. Appellant also
argues that appellee received more than half of the marital property, thus making the distribution
of property inequitable. Finally, appellant argues that the trial court failed to consider and use the
factors set forth in R.C. 3105.171(F) in making its division of marital property.
{¶ 35} Trial courts must divide marital property equitably between the spouses. R.C.
3105.171(B). Usually, this requires the court to divide the marital property equally. R.C.
3105.171(C)(1). “However, if the trial court determines that an equal division would produce an
inequitable result, it must divide the property in a way it deems equitable.” O’Rourke v.
O’Rourke, 4th Dist. Scioto No. 08CA3253, 2010–Ohio–1243, ¶ 15; R.C. 3105.171(C)(1).
Because we afford the trial court great discretion in reaching an equitable distribution, we will
not reverse its division of property absent an abuse of discretion. O’Rourke at ¶ 15. An appellate
court reviewing whether a trial court abused its discretion when dividing marital property must
view the property division in its entirety and consider the totality of the circumstances. Briganti
v. Briganti, 9 Ohio St.3d 220, 222, 459 N.E.2d 896 (1984); Byers v. Byers, 4th Dist. Ross No.
09CA3124, 2010–Ohio–4424, ¶ 19.
{¶ 36} In determining the equitable division of the marital property, the court must
consider the factors listed in R.C. 3105.171(F). However, R.C. 3105.171 “does not require the
trial court to address each statutory factor in its written findings of fact. In the absence of an
affirmative showing * * * that the court failed to consider the factors, we presume that the trial
Hocking App. No. 15CA18 14
court followed the statute.” (Citations omitted.) Eddy v. Eddy, 4th Dist. Washington No.
01CA20, 2002–Ohio–4345, ¶ 60. Thus, while a court must indicate the basis for its division of
marital property in sufficient detail to enable a reviewing court to determine whether the award is
fair and equitable, it “need not explain in minute detail its reasoning.” Cope v. Guehl, 7th Dist.
Columbiana No. 07 CO 35, 2009–Ohio–2891, ¶ 38.
{¶ 37} Here, the trial court made an equal division of all assets and liabilities to the
parties by ordering the liquidation and sale of all marital property and by ordering that the
proceeds be used to satisfy marital debt. The trial court also ordered that the parties equally split
any remaining proceeds, after the satisfaction of debt. Thus, appellant’s assertion that the trial
court awarded appellee more than half of the marital property is misplaced. Moreover, the record
in this case supports the trial court’s decision to liquidate the property and equally divide the
proceeds. At the hearing, several witnesses testified that the real estate parcels were littered with
“junk”, and burdened by tax and other liens. It was also adduced that the marital home was
without gas for heat and other home appliances, and without water. The value of the oil and gas
wells owned by the parties was also called into question, because the wells had been mostly
abandoned upon appellant’s incarceration and no production records were made available to the
trial court. The last operator of the wells, who had assumed operating duties for a short time
following appellant’s incarceration, testified that the wells were producing more salt-water than
oil or gas. It was also learned that the wells may need to be plugged at a substantial cost and that
several contractors were owed money as a result of performing maintenance on the wells. There
was also substantial evidence presented that the parties had accumulated a large sum of marital
debt including, inter alia, at least two mortgage loans and several hefty credit card debts.
Appellee testified that despite her best efforts she could no longer afford mortgage payments on
Hocking App. No. 15CA18 15
the marital residence or payments on the marital credit cards, and that she was in the process of
declaring bankruptcy. Most of the parties’ personal property was described as “junk”, with little
value other than scrap value.
{¶ 38} Based on the totality of the record, ample evidence exists supporting the trial
court’s decision that liquidation was the most desirable and equitable course of action. Although
the trial court did not explicitly cite the R.C. 3105.171(F) factors in the divorce decree, it did
provide sufficient reasoning for its decision regarding the property division. While the parties
owned a significant amount of marital property, they also had accumulated a significant amount
of marital debt. In addition, given the condition of the property, the current financial situations of
the parties, and the parties’ inability to properly maintain the property, the trial court could have
reasonably concluded that liquidating the property and equally dividing the proceeds was the
most equitable division available. Moreover, appellant’s argument that he could have given a
more detailed account of the property values had he been permitted to appear at the final hearing
is also without merit for the reasons previously stated. Accordingly, we find that the trial court's
division of property was reasonable and not an abuse of discretion. Appellant’s fourth
assignment of error is overruled.
D. Spousal Support
{¶ 39} In his third assignment of error, appellant contends that the trial court abused its
discretion when it awarded appellee spousal support because he is incarcerated and thus,
according to him, unable to pay spousal support. He also contends that after the final divorce
decree was released ordering that he pay spousal support, he was served with a property tax
assessment in the sum of $23,735, thus “greatly reduc[ing] his ability to pay spousal support”.
Hocking App. No. 15CA18 16
{¶ 40} “Trial courts generally enjoy broad discretion to determine spousal support
issues.” Bolender v. Bolender, 4th Dist. Adams No. 13CA984, 2014-Ohio-2136, ¶ 15.
“Consequently, an appellate court will not reverse a trial court’s spousal support decision absent
an abuse of discretion.” Id., citing Bechtol v. Bechtol, 49 Ohio St.3d 21, 24, 550 N.E.2d 178(1990); Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989).
{¶ 41} 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) states:
(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;
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(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;
(n) Any other factor that the court expressly finds to be relevant and equitable.
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(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.
{¶ 42} “When making a spousal support award, a trial court must consider all statutory
factors and not base its determination upon any one factor taken in isolation.” Bolender at ¶ 17,
citing Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988), paragraph one of the
syllabus. “Although a trial court possesses broad discretion to determine whether spousal support
is reasonable and appropriate, it must consider the statutory factors and must indicate the basis
for a spousal support award in sufficient detail to enable a reviewing court to determine that the
award complies with the law.” Id., citing Kaechele at paragraph two of the syllabus.
{¶ 43} During the final divorce hearing, evidence was presented pertaining to the
applicable spousal support factors listed in R.C. 3105.18(C). For instance, it was learned that
both appellant and appellee had some employment during the marriage. Appellant had regular
employment until 2001 when his job at Techno Glass was terminated. After 2001, appellant had
received additional education but was never employed outside the home. Rather, in the years
after 2001 appellant mostly engaged in oil and gas production. Appellee, on the other hand, was
employed at the time of the hearing at Walmart. She earns $12.10 per hour, and works 32-40
hours per week. Prior to his arrest, appellant was also collecting social security income, income
from his military pension, and income from his retirement from Techno Glass. Due to his
incarceration, appellant no longer receives social security income; however, he continues to
collect approximately $1,200-$1,300 per month from his military pension, and $98.50 per month
from Techno Glass. He also earns $18 per month while in prison.
Hocking App. No. 15CA18 19
{¶ 44} It was also gleaned at the final hearing that since appellant’s incarceration,
appellee has been unable to pay the marital debts. Appellee also lacks the knowledge or ability to
operate the oil and gas wells. Appellee was 57 years old at the time of the hearing and suffers
some knee problems. Appellant was 67 years old at the time of his deposition. Appellant was
active, as evidenced from his operation of the oil and gas wells, up until the time of his arrest.
{¶ 45} Based on the record before us, we find that the trial court’s award of spousal
support in the amount of $600 per month to appellee was not unreasonable. Appellant and
appellee were married for 25 years; a significant amount of years in this court’s determination.
Appellant continues to derive significant income from his military pension while living relatively
cost-free in prison. Appellee, on the other hand, has been forced to provide for herself and
without the benefit of appellant’s oil and gas business. With the sale of the marital home,
appellee will likely be burdened with new rent expenses. Furthermore, because of the significant
marital debts, the liquidation of the marital property will not likely provide any proceeds to aid
appellee in the costs of day-to-day living. Appellant’s actions and resulting incarceration has also
contributed to appellee’s current economic hardships. Without appellant’s ability to maintain and
operate the oil and gas wells, the wells have stopped producing income; and the property on
which they sit has diminished in value. In short, appellee did rely upon the appellant during their
marriage to help pay the bills and to maintain their lifestyle.
{¶ 46} Furthermore, we are also not persuaded by appellant’s argument that his
incarceration renders him unable to pay spousal support. The trial court determined that his
military pension was separate property; and he continues to receive a monthly pension between
$1,200-$1,300 while in prison. It is clear from the record that the trial court considered
appellant’s military pension income when it determined to award spousal support. R.C.
Hocking App. No. 15CA18 20
3105.18(C)(1)(a) requires trial courts to consider the parties’ income “from all sources”. Thus,
we do not agree with appellant’s contention that his incarceration renders him unable to pay
spousal support.
{¶ 47} Finally, we note that appellant has attached to his appellate brief a recent property
tax assessment. However, because the tax assessment was not evidence before the trial court we
may not consider it in determining whether the spousal support award was proper. See App.R.
12(A) (appellate court review is confined to the record before it, as defined in App.R. 9(A));
State v. Martin, 4th Dist. Scioto No. 04CA2946, 2005-Ohio-4059, ¶ 11 (“[W]e cannot consider
exhibits attached to briefs that are not part of the record on appeal.”); Napper v. Napper, 3d Dist.
Allen No. 1-02-82, 2003-Ohio-2719, ¶ 5 (“[A]n appellate court’s review is strictly limited to the
record that was before the trial court, no more and no less.”).
{¶ 48} Having considered the totality of the circumstances, we do not find that the trial
court’s award of spousal support was an abuse of discretion. Accordingly, we overrule
appellant’s third assignment of error.
E. The Attorney’s Fees Award
{¶ 49} In his second assignment of error, appellant contends that the trial court erred by
ordering him to pay $4,000 of appellee’s attorney’s fees and costs. Specifically, appellant
contends such award is inequitable because appellee possesses sufficient funds to pay her
litigation fees and because appellee is currently earning a greater income than he due to his
incarceration.
{¶ 50} “The decision to award attorney fees in a divorce action is vested in the sound
discretion of the trial court and we will not reverse it absent an abuse of that discretion.”
Hocking App. No. 15CA18 21
O’Rourke, 2010–Ohio–1243, at ¶ 30, citing Parker v. Parker, 10th Dist. Franklin No. 05AP-
1171, 2006–Ohio–4110, ¶ 36. “Under R.C. 3105.73(A), ‘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.’ ” Bray v. Bray, 4th Dist. Ross No. 10CA3167, 2011–Ohio–861, ¶ 45. 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.’ ” Id., quoting
R.C. 3105.73(A).
{¶ 51} Here, we believe that the record supports the trial court’s decision to award
appellee attorney’s fees and costs. During the course of the proceedings, appellant filed
numerous documents and motions with the trial court requiring appellee’s counsel to respond in
kind. While some of these filings were relevant to the proceedings, many were mere attempts to
reargue his criminal trial. Other filings were nonsensical. Appellee’s counsel was forced to file
several motions requesting that appellant be ruled a vexatious litigator. “When the amount of
time and work spent on the case by the attorney is evident, an award of attorney fees, even in the
absence of specific evidence, is not an abuse of discretion.” Babka v. Babka, 83 Ohio App.3d
428, 435, 615 N.E.2d 247 (9th Dist.1992). Given the totality of these circumstances, the trial
court could have rationally concluded that the equitable result would be to order appellant to
contribute $4,000 towards appellee’s attorney’s fees and costs. Accordingly, we overrule
appellant’s second assignment of error.
IV. Conclusion
{¶ 52} Based on the foregoing, we overrule all of appellant’s assignments of error; and
we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Hocking App. No. 15CA18 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County
Common Pleas Court, Domestic Relations Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this
entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: _______________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.