Bailey v. Bailey

[Cite as Bailey v. Bailey, 2020-Ohio-4333.]
COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
COUNTY OF SANDUSKY
BRENDA BAILEY, :
Plaintiff-Appellee/ :
Cross-Appellant, No. 20 CAS 14
:
v.
:
RAYMOND BAILEY,
:
Defendant-Appellant/
Cross-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED IN PART AND REMANDED
RELEASED AND JOURNALIZED: September 4, 2020
Civil Appeal from the Sandusky County Court of Common Pleas
Domestic Relations Division
Case No. 18 DR 1144
Appearances:
Albrechta & Coble, Ltd., John Coble, Joseph F. Albrechta,
and Jordan A. Treece, for appellee.
Mayle, L.L.C., and Andrew R. Mayle, for appellant.
KATHLEEN ANN KEOUGH, J.:
Raymond Bailey (“Raymond”) appeals from a judgment entry of the
Sandusky County Court of Common Pleas, Domestic Relations Division, granting a
divorce from his former wife, Brenda Bailey (“Brenda”). Raymond contends that
the trial court erred in not retaining jurisdiction to modify the spousal support
award. Brenda cross-appeals, contending that the trial court erred in limiting the
spousal support award to eight years. For the reasons that follow, we affirm the trial
court’s judgment regarding the length of the spousal support award but reverse that
part of the trial court’s judgment stating that it does not retain jurisdiction to modify
the spousal support award. The matter is remanded for entry of an amended
judgment consistent with this decision.
I. Background
The parties engaged in lengthy settlement discussions and reached
agreement on all issues except for spousal support and attorney fees. The trial court
decided the issue of spousal support on briefs and awarded Brenda support of
$1,750.00 per month for eight years, nonmodifiable but subject to termination upon
Brenda’s remarriage or cohabitation with an unrelated male.
The trial court made the following findings regarding its spousal
support award. Raymond and Brenda were married for 35 years and had three
children, all of whom were adults at the time of the divorce. They are each 53 years
old. Raymond is employed as a laborer with an average annual income over the last
five years of about $84,500.00. Brenda receives Social Security disability benefits
in the amount of $13,326.00 annually. She could earn additional income because
she is a licensed daycare provider but has chosen not to work in that field. The court
also found that Brenda would most likely need to further supplement her income
and that she is not so disabled that she cannot find gainful employment. The court
reasoned that “[s]he is not a woman abandoned at age 70 after 50 years of marriage
with no work history and no opportunity.”
In his assignment of error, Raymond contends that the trial court
erred in failing to retain jurisdiction to modify the spousal support award during its
eight-year term. He does not dispute the amount or length of the award, but argues
that in light of the trial court’s refusal to retain jurisdiction, he could not seek any
reasonable accommodation should some future misfortune such as a disability or
layoff render him unable to comply with the order. He asserts that without any
ability to modify the spousal support order if there is a change in circumstances, any
financial misfortune would either cause a drastic change in his own lifestyle or force
him into a contempt-of-court situation. According to Raymond, either result would
“twist the even-handed aim” of spousal support law because although the law does
not require the court to ensure an equal standard of living when awarding spousal
support, “neither party should profit at the expense of the other.” Kunkle v. Kunkle,
51 Ohio St.3d 64, 70, 554 N.E.2d 83 (1990).
Under R.C. 3105.18(E)(1), a domestic relations court must reserve
jurisdiction to subsequently modify a spousal support award. The decision as to
whether to retain such jurisdiction is a matter within the domestic relations court’s
discretion. Smith v. Smith, 6th Dist. Huron No. H-99-029, 2001 Ohio App. LEXIS
64, 8 (Jan. 12, 2001), citing Johnson v. Johnson, 88 Ohio App.3d 329, 331, 623
N.E.2d 1294 (5th Dist.1993). Accordingly, this court will not reverse a trial court’s
decision to not retain jurisdiction absent an abuse of that discretion.
An abuse of discretion is more than an error law or judgment. Rather,
the term implies that the trial court’s attitude in reaching its decision was
unreasonable, arbitrary, or unconscionable. Smith at id., citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
In this case, we find that the trial court was unreasonable in failing to
retain jurisdiction to modify the spousal support award in the future should
Raymond or Brenda’s circumstances change. “The parties are in their early fifties
and, although they do not suffer from major medical problems at the present time,
they could encounter such problems over the next [eight] years.” Smith at 11
(holding that trial court’s failure to retain jurisdiction over a seven-year spousal
support award was an abuse of discretion). Additionally, in these uncertain
economic times, exacerbated by a worldwide pandemic, Raymond’s income could
vary greatly in the coming years. Given these factors, we conclude the trial court
abused its discretion by failing to retain jurisdiction over the spousal support award.
Our conclusion is in accord with the majority of districts in Ohio,
including this one, that have held that a trial court abuses its discretion if it orders
spousal support for definite periods of relatively long duration without a reservation
of authority to modify the amount of support due to a change of circumstances. See
Smith at ¶ 10; Morris v. Morris, 9th Dist. Summit No. 22778, 2006-Ohio-1560, ¶ 21;
Orwick v. Orwick, 7th Dist. Jefferson No. 04JE14, 2005-Ohio-5055, ¶ 64, citing
Bertholet v. Bertholet, 154 Ohio App.3d 101, 2003-Ohio-4519, 796 N.E.2d 541, ¶ 55
(9th Dist.); Arthur v. Arthur, 130 Ohio App.3d 398, 410, 720 N.E.2d 176 (5th
Dist.1998); Nori v. Nori, 58 Ohio App.3d 69, 73, 568 N.E.2d 730 (12th Dist.1989);
Babcock v. Babcock, 8th Dist. Cuyahoga No. 82805, 2004-Ohio-2859, ¶ 43; Straube
v. Straube, 11th Dist. Lake No. 2000-L-074, 2001 Ohio App. LEXIS 3528 (Aug. 10,
2001); Henninger v. Henninger, 2d Dist. Darke No. 1303, 1993 Ohio App. LEXIS
2558 (May 4, 1993); Brown v. Brown, 12th Dist. Madison No. CA2008-08-021,
2009-Ohio-2204, ¶ 74.
The spousal support award in this case was for eight years, a relatively
lengthy period of time. The trial court’s failure to retain jurisdiction to modify the
spousal support award failed to account for possible contingencies such as Raymond
becoming disabled or suffering a reduction in income. The trial court’s failure to
retain jurisdiction is also a detriment to Brenda because it prevents her from seeking
a modification to the award. Morse v. Morse, 6th Dist. Ottawa No. OT-16-023, 2017-
Ohio-5690, ¶ 29 (retention of jurisdiction works to the advantage of both parties
because it makes it possible for both parties to ask for modification of the award).
Accordingly, we find that the trial court abused its discretion in not retaining
jurisdiction to modify the spousal support award. Raymond’s assignment of error
is sustained.
In her cross-appeal, Brenda contends that the trial court abused its
discretion in limiting the spousal support award to eight years. She contends that
she is disabled, and nothing in the record suggests that she has the resources, ability,
or potential to become self-supporting. Accordingly, she contends that the trial
court should have ordered spousal support for an indefinite duration and reserved
jurisdiction to modify the order as appropriate. In the alternative, she contends that
if there must be a fixed term, “at the very least,” the term “should be in the
neighborhood of 12 years,” and the court should retain jurisdiction “for both parties
to have the benefit of court review in order to ensure fairness and that their
respective needs [are] being met.” (Appellee’s Brief, p. 8.)
Trial courts generally enjoy broad discretion to determine spousal
support issues. Kunkle, 51 Ohio St.3d at 67, 554 N.E.2d 83. Accordingly, we will not
reverse a trial court’s spousal support decision absent an abuse of discretion. Pauly
v. Pauly, 80 Ohio St.3d 386, 390, 696 N.E.2d 1108 (1997). In this case, we find no
abuse of discretion by the trial court’s limiting the spousal support award to eight
years.
R.C. 3105.18(B) allows trial courts, upon a party’s request and after
property distribution, to award reasonable spousal support. The statute sets forth
the factors a court shall consider when determining whether a spousal support
award is reasonable and appropriate. If the trial court awards spousal support,
[t]he modern trend favors terminating [spousal support] on a date
certain. The reason for awarding [spousal support] payable only to a
date certain is that the payee’s need requiring support ceases, when,
under reasonable circumstances, the payee can become self-
supporting. * * * [E]xcept 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 [spousal support] 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 at 69.
This marriage was unquestionably one of lengthy duration (35 years),
so the standard presumption against an indefinite award of spousal support is
therefore inapplicable. But Kunkle does not stand for the proposition that
permanent spousal support is mandated in marriages of lengthy duration. Lojek v.
Lojek, 4th Dist. Washington No. 10CA8, 2010-Ohio-5156, ¶ 62; Bello v. Bello, 5th
Dist. Delaware No. 09CAF040041, 2010-Ohio-1912, ¶ 70. Even in a marriage of
long duration, “if the payee spouse has the ability to work outside the home and be
self-supporting, a spousal support award should include a termination date.”
Lepowsky v. Lepowsky, 7th Dist. Columbiana No. 06CO23, 2007-Ohio-4994, ¶ 81.
An award of indefinite spousal support is proper only where “under reasonable
circumstances, a divorced spouse does not have the resources, ability or potential to
become self-supporting.” Kunkle at 69 (emphasis sic.)
We find no merit to Brenda’s contention that there is no evidence in
the record to suggest she has the resources, ability, or potential to become self-
supporting. The evidence demonstrated that Brenda is 53 years of age. Today,
where individuals commonly live well into their eighties and nineties, 53 is
considered to be a relatively young age. See, e.g., Sears v. Sears, 5th Dist. Stark No.
2001CA00368, 2002-Ohio-4069 (affirming denial of permanent spousal support in
a case involving a 34-year marriage with both spouses in their mid-fifties).
The evidence also demonstrated that despite her disability,1 Brenda is
able at a minimum to provide daycare services in her home.2 Brenda’s relatively
young age, coupled with her demonstrated ability to work, is sufficient evidence that
she has the potential and ability to become self-supporting. Brenda offered no
evidence to the contrary. Thus, we find no abuse of discretion in the trial court’s
decision not to award indefinite spousal support.
We likewise find no abuse of discretion in the trial court’s decision to
limit the award to eight years. Brenda’s argument that the term should be “in the
neighborhood of 12 years” because the marriage was lengthy, and she is currently
unemployed and receiving disability benefits, offers nothing to explain why the
award should have been for a longer period of time. The trial court undoubtedly
considered these factors in rendering its judgment, and we find nothing in the record
to indicate the award should have been for a longer period of time. Brenda’s cross-
appeal is therefore overruled.
Judgment reversed in part and remanded.
It is ordered that appellant/cross-appellee recover from appellee/cross-
appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
1 In her trial court brief regarding spousal support, Brenda stated that during her
prior employment at Revere Plastics, she sustained a wrist/shoulder injury that resulted
in the Social Security disability award.
2 Although Brenda asserted in her trial
court brief that she is not a licensed daycare
provider, the evidence demonstrated that she has provided daycare services in her home.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
ANITA LASTER MAYS, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR
*Judges of the Eighth District Court of Appeals sitting by assignment in the Sixth
District Court of Appeals.
Spousal support award; retain jurisdiction; abuse of discretion; change in
circumstances; modify; definite period; eight years; disability; self-supporting.
Trial court abused its discretion in not retaining jurisdiction to modify the spousal
support award where the award was for eight years and could not be modified if
there was a change in circumstances; trial court did not abuse its discretion in
limiting the spousal support award to a definite term even though the marriage was
of long duration and the payee ex-wife was disabled because she was relatively young
and had the ability to work and become self-supporting.