Brown v. Brown

[Cite as Brown v. Brown, 2013-Ohio-2709.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LINDA L. BROWN : JUDGES:
:
: Hon. W. Scott Gwin, P. J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
CORY L. BROWN : Case No. 2012CA0010
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County
Court of Common Pleas, Case No.
10-DV-0756
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 25, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
COLE GERSTNER DAN GUINN
Gottlieb, Johnston, Beam & Dal Ponte, P.L.L. 118 West High Avenue
320 Main Street, P.O. Box 190 New Philadelphia, OH 44663
Zanesville, OH 43702
Coshocton County, Case No. 2012CA0010 2
Baldwin, J.
{¶1} Appellant Cory L. Brown appeals a judgment of the Coshocton County
Common Pleas Court granting appellee Linda L. Brown a legal separation.
STATEMENT OF FACTS AND CASE
{¶2} The parties were married on April 3, 1970. Appellee filed the instant
action seeking a legal separation from appellant. Appellant filed an answer admitting
the grounds of incompatibility for a legal separation, and also counterclaimed for
divorce.
{¶3} The case proceeded to a hearing before a magistrate. At the time of the
hearing, appellee was 59 years old. She had significant health issues, including post
status hysterectomy, a prolapsed bladder, and general incontinence. She had only
worked full-time outside the home for two years of the marriage, and was employed
part-time at Marilyn’s Natural Foods. Appellant was 62 years old and also had
significant health problems, including arthritis and prostate difficulties. Appellant had
been retired on social security disability for about five years.
{¶4} The magistrate recommended that appellee be granted a legal separation
and that appellant’s counterclaim for divorce be denied. The magistrate recommended
that appellant pay spousal support to appellee in the amount of $369.00 per month for
eight years.
{¶5} Appellant filed objections to the magistrate’s decision. The trial court
overruled his objections concerning spousal support and grounds for divorce. The court
found that a legal separation would allow appellee to remain on appellant’s health
Coshocton County, Case No. 2012CA0010 3
insurance from his former employer, and granting appellant’s request for divorce would
place appellee in jeopardy because health insurance coverage is not likely to be
available. The court found that based on appellee’s health condition and the 41-year
length of the marriage the just result was to grant the legal separation and dismiss the
divorce.
{¶6} Appellant assigns two errors on appeal:
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
THAT THE WIFE SHOULD BE AWARDED SPOUSAL SUPPORT DUE TO THE
LARGE PROPERTY AWARD SHE RECEIVED FROM THE HUSBAND.
{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
HUSBAND’S COUNTERCLAIM FOR DIVORCE WHEN HE HAD PROPER GROUNDS
PURSUANT TO R.C. 3105.01.”
I.
{¶9} Appellant argues that the court erred in awarding spousal support to
appellee. He argues that the award was unreasonable because she received a large
property settlement in the separation, and she is employed and has the ability to work
more hours than she chooses to work.
{¶10} Our review of a trial court's decision relative to spousal support is
governed by an abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348, 421
N.E.2d 1293 (1981). We cannot substitute our judgment for that of the trial court unless,
when considering the totality of the circumstances, the trial court abused its discretion.
Holcomb v. Holcomb, 44 Ohio St.3d 128, 541 N.E.2d 597 (1989). In order to find an
abuse of discretion, we must determine that the trial court's decision was unreasonable,
Coshocton County, Case No. 2012CA0010 4
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d
1140 (1983).
{¶11} R.C. 3105.18(C)(1) sets forth the factors the trial court is to consider when
awarding spousal support:
{¶12} “(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:
{¶13} “(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;
{¶14} “(b) The relative earning abilities of the parties;
{¶15} “(c) The ages and the physical, mental, and emotional conditions of the
parties;
{¶16} “(d) The retirement benefits of the parties;
{¶17} “(e) The duration of the marriage;
{¶18} “(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;
{¶19} “(g) The standard of living of the parties established during the marriage;
{¶20} “(h) The relative extent of education of the parties;
{¶21} “(i) The relative assets and liabilities of the parties, including but not limited
to any court-ordered payments by the parties;
Coshocton County, Case No. 2012CA0010 5
{¶22} “(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;
{¶23} “(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;
{¶24} “(l) The tax consequences, for each party, of an award of spousal support;
{¶25} “(m) The lost income production capacity of either party that resulted from
that party's marital responsibilities;
{¶26} “(n) Any other factor that the court expressly finds to be relevant and
equitable.”
{¶27} The trial court found that there was a significant income disparity between
the parties during their long marriage, and due to age and education neither party could
earn significant income in the future. The court found that appellee had been a stay-at-
home mom, deferring significant earning opportunity. After dividing the assets of the
marriage equally, appellant still received Social Security in the amount of $1,987.00 per
month, while appellee’s part-time income was $568.53. While appellant argues there is
no evidence that appellee is unable to work more hours per week than her current part-
time hours, there is also no evidence that she has more working hours available to her
at the health food store. Appellee only worked full-time for two years of the forty-one
year marriage, and was 59 years old at the time of the divorce. The trial court did not
Coshocton County, Case No. 2012CA0010 6
abuse its discretion in awarding spousal support in the amount of $369.00 per month for
eight years.
{¶28} The first assignment of error is overruled.
II.
{¶29} In his second assignment of error, appellant argues that the court erred in
not granting a divorce to him rather than granting a legal separation to appellee.
{¶30} Appellant first argues that he established the grounds of extreme cruelty
because appellee refused to have sex with him.
{¶31} “The definition of extreme cruelty is sufficiently broad to encompass acts
and conduct which destroy the peace of mind and happiness of one of the parties to the
marriage and make the marital relationship intolerable to that party.” Wuebker v.
Wuebker, 3rd Dist. No. 2-03-04, 2003-Ohio-2954, at ¶ 9.
{¶32} Appellant presented the following testimony to support his claim of
extreme cruelty:
{¶33} “A: And I couldn’t deal with – I got refused sex if she wanted something
and didn’t get it.
{¶34} “Q: When is the last time that you have had sex with your wife?
{¶35} “A: Two times in March the year before last.
{¶36} “Q: All right. That’s the last time?
{¶37} “A: Yes.
{¶38} “Q: And before that, how long a period of time was it?
{¶39} “A: It was very seldom. Maybe not even once a month. She refused
most of the time.”
Coshocton County, Case No. 2012CA0010 7
{¶40} Tr. 108-109.
{¶41} The trial court did not err in finding this evidence did not rise to the level of
extreme cruelty. Both of the parties had health issues, and appellant had retired on
disability due to his health problems. Further, appellant has not demonstrated that
appellee’s refusal to have sex with him made the marital relationship intolerable to him,
as he testified that he loved his wife and did not want the separation, but if they were
going to be apart he wanted a divorce and not merely a separation.
{¶42} Appellant also argues that because the court granted the separation on
the grounds of incompatibility, the court should have granted him a divorce on the same
grounds.
{¶43} R.C. 3105.17(A) provides in pertinent part:
{¶44} “(A) Either party to the marriage may file a complaint for divorce or for
legal separation, and when filed the other may file a counterclaim for divorce or for legal
separation. The court of common pleas may grant divorces for the causes set forth in
section 3105.01 of the Revised Code. The court of common pleas may grant legal
separation on a complaint or counterclaim, regardless of whether the parties are living
separately at the time the complaint or counterclaim is filed, for the following causes:
{¶45} “(10) Incompatibility, unless denied by either party.”
{¶46} In addressing the issue of whether the court may choose between a legal
separation or a divorce when identical grounds are pled and proven, the Court of
Appeals for the Eleventh District held:
{¶47} “We believe that the clear language of the statute gives the trial court the
discretion to decide whether a legal separation or a divorce is most appropriate in each
Coshocton County, Case No. 2012CA0010 8
situation, including those situations where parties are alleging grounds based on the
identical provisions of R.C. 3105.01 and 3105.17. As with other decisions made in
matters of domestic relations, the trial court’s decision should not be overturned absent
an abuse of discretion. The statute obviously contemplates the situation in which there
is evidence presented which would satisfy similar or dissimilar grounds for either divorce
or legal separation. In such a situation, the court is given discretion to choose between
the two based on the overall circumstances beyond the grounds alleged and proven.”
Harcourt v. Harcourt, 11th Dist. No. 97-A-0066, 1998 WL 683811 (September 30,
1998).
{¶48} The trial court found a legal separation would allow appellee to remain on
appellant’s health insurance from his former employer, and granting appellant’s request
for divorce would place appellee in jeopardy because health insurance coverage is not
likely to be available. The court found that based on appellee’s health condition and the
41-year length of the marriage the just result was to grant the legal separation and
dismiss the divorce. Based on the facts of this case, we find the court did not abuse its
discretion in granting a separation rather than a divorce on the grounds of
incompatibility.
{¶49} The second assignment of error is overruled.
Coshocton County, Case No. 2012CA0010 9
{¶50} The judgment of the Coshocton County Common Pleas Court is affirmed.
Costs are assessed to appellant.
By: Baldwin, J.
Gwin, P. J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE
CRB/rad
[Cite as Brown v. Brown, 2013-Ohio-2709.]
IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LINDA L. BROWN :
:
Plaintiff - Appellee :
:
-vs- : JUDGMENT ENTRY
:
CORY L. BROWN :
:
Defendant - Appellant : CASE NO. 2012CA0010
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed. Costs
assessed to appellant.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE