Copley v. Copley

[Cite as Copley v. Copley, 2020-Ohio-6669.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PIKE COUNTY
JEFFREY W. COPLEY, : Case No. 19CA901
Plaintiff-Appellant, :
v. : DECISION AND
JUDGMENT ENTRY
CONNIE A. COPLEY, :
Defendant-Appellee. : RELEASED 12/02/2020
______________________________________________________________________
APPEARANCES:
Jennifer L. Ater, Chillicothe, Ohio, for appellant.
Richard M. Lewis, The Law Firm of Richard M. Lewis, LLC, Jackson, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Jeffrey Copley appeals from a divorce decree issued by the Pike County
Common Pleas Court. Mr. Copley contends that the trial court abused its discretion
when it ordered him to pay $2,200 a month in temporary spousal support during the
pendency of the divorce proceeding because it did not consider the factors in R.C.
3105.18(C)(1) or articulate the basis for its award, and the award is inappropriate,
unreasonable, and excessive. However, the court did not have a duty to consider the
R.C. 3105.18(C)(1) factors or make findings of fact and conclusions of law when it
awarded temporary support, evidence in the record supports the award, and Mr. Copley
failed to show that the award was excessive. Accordingly, we reject his contentions.
{¶2} Mr. Copley also contends that the trial court abused its discretion in various
ways when it ordered him to indefinitely pay $2,200 a month in spousal support in the
divorce decree. Mr. Copley asserts that the court erred by including $17,000 of gross
Pike App. No. 19CA901 2
annual overtime wages in its calculation of his income, but that figure is reasonable given
evidence of the overtime wages he earned during the marriage. Mr. Copley also asserts
that the court failed to consider more than half of his monthly living expenses when it
made the award. Although the trial court was not obligated to consider the parties’ living
expenses under R.C. 3105.18(C)(1), it did so, purporting to list in its spousal support
decision all of the expenses to which the parties had testified. Once the court decided to
consider the parties’ living expenses, it acted unreasonably when it disregarded many of
the expenses to which Mr. Copley testified without explanation. Accordingly, we
conclude that the trial court abused its discretion when it made the indefinite support
award, reverse that portion of its judgment, and remand for further proceedings
consistent with this opinion. We affirm the judgment in all other respects.
I. FACTS AND PROCEDURAL HISTORY
{¶3} Jeffrey and Connie Copley married in February 1987 and have two adult
children. In January 2017, Mr. Copley moved out of the marital home, and in November
2017, he filed a complaint for divorce. Ms. Copley filed an answer, a counterclaim for
divorce, and a motion for temporary spousal support during the pendency of the divorce
proceeding which she supported with her own affidavits. Mr. Copley, who had been
voluntarily paying Ms. Copley $380 a week, opposed paying her more and submitted his
own counter affidavits. The trial court ordered Mr. Copley to pay Ms. Copley $2,200 a
month in temporary spousal support during the pendency of the proceeding. The parties
had no marital debts and entered into a stipulated agreement regarding the division of
property, and the court conducted a trial on the only contested issue—spousal support.
Pike App. No. 19CA901 3
{¶4} Mr. Copley testified that he is 54 years old, is a high school graduate, and
went to college for two semesters. He was in the Navy, worked at a uranium enrichment
plant for 21 years, and has worked for Fluor BWXT Portsmouth, L.L.C., for 11 years. His
hourly rate is $39.472, and he earns time and a half for overtime. He works 40 hours or
more a week; he “very rarely” turns down overtime when it is available. Sometimes he
goes months without overtime, but the “best time” for it is between May and August, and
there have been “very few years” in which he did not have overtime. In 2015, he earned
$19,131.40 from overtime. He was “sure” that he worked overtime in 2016 but did not
recall how much. In 2017, he earned $15,180.88 from overtime. In 2018, he earned
$46,652.30 from overtime, which was “unusual” and attributable to his employer
combining two departments. In 2019, at the time of the April trial, he had worked 60
hours of overtime. Mr. Copley has a degenerated disc which causes back pain but does
not prevent him from working, and he has pre-cancerous patches removed from his skin
every six months. Mr. Copley testified that during the marriage, Ms. Copley’s
employment outside the home was sparse. He knew Ms. Copley had various health
issues but testified that they did not limit her activities and that he encouraged her to
work after their children were grown.
{¶5} Mr. Copley testified about his average expenses for electricity ($30/month),
water ($28.33 or $30/month), vehicle maintenance ($100/month), gasoline ($100 or
$112/month), a gym membership ($19.66 or $30/month), groceries ($300/month), dining
out ($150/month), clothing ($150/month), charitable contributions ($80/month), insurance
on a camper ($70/month), fuel oil ($81.25/month), a cell phone ($40/month), dry cleaning
and laundry ($15/month), life insurance ($29.55/month), auto insurance ($98.50/month),
Pike App. No. 19CA901 4
federal income taxes ($1,131.87/month), state income taxes ($198.08/month), Medicare
withholding ($95.18/month), Social Security withholding ($406.97/month), union dues
($72.88/month), 401K contributions (6% of wages, estimated at $467.67/month), and
health, dental, and vision insurance for him and Ms. Copley ($831.95/month). Once Ms.
Copley is removed from his health, dental, and vision insurance, his monthly expense for
those items will decrease to $418.81. Mr. Copley testified that in 2005, his parents
transferred about four acres of land to him, but his mother still lives in the house on the
land and pays the real estate taxes. Mr. Copley could live with her but instead pays
$500 a month to rent her camper in the front yard; he plans to build a house on the
property for himself.
{¶6} Ms. Copley’s brother, Donnie Dyke, testified that Mr. Copley had told him a
number of times that he preferred that Ms. Copley not work because it would “hurt him
on his taxes,” and “he made enough money to take care of things.”
{¶7} Ms. Copley testified that she is 53 years old and is a high school graduate.
During the marriage, she cared for the couple’s children, house, and parents. Her work
experience includes about a month of part-time work cleaning a post office and a few
months of work at a Goodwill Industries retail store. She left Goodwill because she got
pregnant, and Mr. Copley did not want her to work anymore. Ms. Copley testified that
even after the couple’s children were in school, Mr. Copley did not want her to work
because she had enough to do with caring for the house and their parents, he made
enough money to support them, and he did not want to move to a higher tax bracket.
She did not seek employment after they separated. She spends four to five hours a day
on housework, an hour a day caring for her animals, and about 20 hours a week helping
Pike App. No. 19CA901 5
her 82-year-old mother. Ms. Copley testified that she has several health issues. She
needs ongoing chiropractic treatment for neck and back pain and has migraines, muscle
spasms, a condition that causes painful callouses on her feet which require surgical
removal, daily anxiety attacks, depression, uterine tumors that cause vaginal pain, cysts
throughout her breasts and right kidney, and fibromyalgia. However, she admitted that
she is not disabled and that no doctor has told her to not work.
{¶8} Ms. Copley testified about her average expenses for real estate taxes
($800/year), homeowners’ insurance ($800/year), electricity ($100/month), water
($60/month), fuel oil ($2,000/year), trash collection ($50/three months), a cell phone
($70/month), home phone/tv/internet ($200/month), groceries and sundries ($200/week),
dining out ($100/week), clothing ($100/week), hair care ($30/month), vehicle
maintenance ($40/two or three months), gasoline ($120/month), and car insurance
($112.00/six months). Under Mr. Copley’s health insurance plan, she has out-of-pocket
expenses of about $200 a month for medication, and she testified about the costs
associated with getting her own insurance after the divorce. Ms. Copley testified that
she attends church “[o]n and off” and donates “sometimes $40 and sometimes more.”
{¶9} Richard Oestreich, Ph.D., CRC, a vocational consultant, performed a
vocational assessment of Ms. Copley. Testing revealed that her reading or word
recognition and arithmetic skills were at a fourth-grade level, and her spelling skills were
at a fifth-grade level. Her vocational assets were that she presents well, has good social
skills, and has performed well as a stay-at-home mother and homemaker. Her vocational
deficits were that she had been out of the workforce for over 30 years, had never worked
a full-time job, had some physical limitations which reduced her ability to lift heavy
Pike App. No. 19CA901 6
objects, had no skill set to offer in the marketplace, tested below the high school range in
academic achievement levels, was largely unable to use a computer to benefit an
employer, and was 53 years old. Dr. Oestreich testified that Ms. Copley’s vocational
history was “very sparse” and unlikely to lead to employment now. He opined that she
was capable of performing an unskilled job, such as retail clothing sorter, stocker, or
child care worker. He placed her earning capacity at “$18,000 to start” and opined that
she would “need about six months to find suitable employment.”
{¶10} Abbey Palmer, D.C., testified that she provides chiropractic services to Ms.
Copley for degenerative disc disease and misalignment of the spine. She recommends
ongoing chiropractic care for her but not physical therapy or surgery. Dr. Palmer has not
observed limitations in Ms. Copley’s mobility that would prevent her from working but
opined that “[a] lot of hard labor” would probably exacerbate her problems.
{¶11} In its spousal support decision, the court made findings on each of the
factors in R.C. 3105.18(C)(1). Among other things, the court found that Mr. Copley’s
gross annual base wages were $82,101.76 based on a 40-hour work week. The court
found that he regularly worked overtime in past years, that it was reasonable to expect
that he would continue to have overtime income in the future, and that his gross annual
overtime wages were $17,000. The court found Mr. Copley’s gross annual wages and
earning capacity was $99,101.76, and Ms. Copley’s annual earning capacity was
$18,000. Under its discussion of the parties’ assets and liabilities, the court found they
had no liabilities “other than, presumably, their attorney fees,” but that no evidence was
introduced on the amount of fees. The court stated that “[t]he parties each have living
expenses, of course” and purported to list the “regular monthly living expenses” to which
Pike App. No. 19CA901 7
each party had testified. The trial court concluded it was appropriate and reasonable to
award Ms. Copley $2,220 a month until she remarried or either party died but retained
continuing jurisdiction over the issue of spousal support for the purpose of modifying the
amount or terms of payment or terminating support based on a change of circumstances.
The court issued a divorce decree that incorporated its spousal support decision.
II. ASSIGNMENT OF ERROR
{¶12} Mr. Copley presents one assignment of error:
The trial court erred and abused its discretion in its awards of temporary
and permanent spousal support in the amounts and duration, as the
awards are unreasonable, inappropriate, and excessive, and are arbitrary
without a clear detailed basis.
III. LAW AND ANALYSIS
{¶13} In his sole assignment of error, Mr. Copley contends that the trial court
abused its discretion when it awarded temporary spousal support during the pendency of
the divorce proceeding and indefinite spousal support in the divorce decree.
A. Standard of Review
{¶14} “Trial courts generally enjoy broad discretion to determine spousal support
issues.” Bolender v. Bolender, 4th Dist. Adams No. 13CA984, 2014-Ohio-2136, ¶ 15.
We review an award of temporary spousal support during the pendency of a divorce
proceeding and an award of spousal support in a final divorce decree for an abuse of
discretion, which exists when a decision is unreasonable, arbitrary, or unconscionable.
See id. at ¶ 15, 28.
B. R.C. 3105.18
{¶15} Under R.C. 3105.18(B), in a divorce proceeding the trial court “may award
reasonable spousal support to either party” “upon the request of either party and after
Pike App. No. 19CA901 8
the court determines the division or disbursement of property under section 3105.171 of
the Revised Code.” The court may also “award reasonable temporary spousal support
to either party” during the pendency of the proceeding. R.C. 3105.18(B); see also Civ.R.
75(N)(1) (“When requested in the complaint, answer, or counterclaim, or by motion
served with the pleading, upon satisfactory proof by affidavit duly filed with the clerk of
the court, the court * * *, without oral hearing and for good cause shown, may grant a
temporary order regarding spousal support to either of the parties for the party’s
sustenance and expenses during the suit * * *”).
{¶16} R.C. 3105.18(C)(1) states:
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;
(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;
Pike App. No. 19CA901 9
(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.
C. Temporary Spousal Support
{¶17} Mr. Copley asserts that the decision to award temporary spousal support
during the pendency of the divorce proceeding was arbitrary because it contained no
reference to the factors in R.C. 3105.18(C) and did not “set forth any reason for the
amount of temporary spousal support awarded.” He relies on Longo v. Longo, 11th Dist.
Geauga No. 2004-G-2556, 2005-Ohio-2069, to support his position. He also asserts that
the award is “inappropriate, unreasonable and excessive.”
{¶18} Courts have acknowledged that a “ ‘purpose of temporary support is “to
preserve the status quo during the proceeding.” ’ ” Bolender, 4th Dist. Adams No.
13CA984, 2014-Ohio-2136, ¶ 27, quoting Ward v. Ward, 10th Dist. Franklin No. 99AP-
66, 2000 WL 552186, *5 (May 4, 2000), quoting DiLacqua v. DiLacqua, 88 Ohio App.3d
48, 54, 623 N.E.2d 118 (9th Dist.1993). “Temporary spousal support is also appropriate
to provide for the financial needs of a spouse.” Id.Pike App. No. 19CA901 10
{¶19} The trial court’s failure to state that it considered the R.C. 3105.18(C)(1)
factors or articulate the rationale for its temporary award does not render the award
arbitrary. The R.C. 3105.18(C)(1) factors “govern whether an award of spousal support,
and not temporary spousal support during the pendency of divorce, is appropriate.”
Buzard v. Buzard, 2d Dist. Clark No. 2011 CA 18, 2012-Ohio-2658, ¶ 31; see also
Deacon v. Deacon, 8th Dist. Cuyahoga No. 91609, 2009-Ohio-2491, ¶ 49 (“Temporary
spousal support need not be based on the factors in R.C. 3105.18(C), but only needs to
be an amount that is ‘reasonable’ ”). R.C. 3105.18 does not provide “ ‘a specific
methodology’ ” that the trial court must follow in determining whether “ ‘an award of
temporary spousal support is reasonable and how the amount of that award is to be
decided.’ ” Bolender at ¶ 27, quoting Ward at *5. R.C. 3105.18 also does not mandate
that the court issue findings of fact and conclusions of law when it awards temporary
support, and Mr. Copley did not request them.
{¶20} Longo is not binding on this court, and we do not find it persuasive. In that
case, the appellant asserted that the temporary spousal support award was insufficient.
Longo, 11th Dist. Geauga No. 2004-G-2556, 2005-Ohio-2069, ¶ 70. The appellate court
held the award was “fundamentally arbitrary” for a different reason. Id. at ¶ 72. Citing
Stafinsky v. Stafinsky, 116 Ohio App.3d 781, 784, 689 N.E.2d 112 (11th Dist.1996),
Longo stated that “R.C. 3105.18(C)(1) requires the trial court to review certain statutory
factors in making its determination of spousal support and indicate the basis for the
award in sufficient detail to facilitate adequate review.” (Emphasis sic.) Id. at ¶ 71. The
appellate court found that the trial court “did not consider all relevant factors set forth in
R.C. 3105.18 and failed to provide a clear basis for the temporary award.” Id. at ¶ 72.
Pike App. No. 19CA901 11
However, the appellate court did not address the fact that R.C. 3105.18(C)(1) states that
it applies to a determination of “whether spousal support is appropriate and reasonable”
and does not mention temporary support during the pendency of a divorce proceeding.
Moreover, the case Longo relied upon discussed the R.C. 3105.18(C)(1) factors in the
context of a final spousal support award, not a temporary award made during the
pendency of a divorce proceeding. See Stafinsky at 784.
{¶21} The record contains evidence that supports the temporary spousal support
award. In affidavits in support of her motion for temporary support, Ms. Copley averred
that she had not been employed outside the home during the over 30-year marriage, that
she was currently unemployed, that her monthly expenses were $2,463.32, and that Mr.
Copley’s gross annual income was $122,708.82 ($10,225.74 a month). [R. 12, 15, 35]
In counter affidavits, Mr. Copley averred that his gross annual income was $89,855.63
($7,487.97 a month) and that his monthly expenses (excluding $1,646.67 in voluntary
support he had been giving Ms. Copley) were $5,984.75. [R. 36]
{¶22} Regardless of which income figure the trial court accepted, it was
reasonable to award Ms. Copley $2,200 a month to provide for her financial needs
during the pendency of the proceeding given her lack of work history and expenses. If
Mr. Copley earned $10,225.74 a month, the $2,200 a month award would leave him with
$8,025.74 a month, which was more than adequate to pay his claimed monthly
expenses. If Mr. Copley earned $7,487.97, it would have been impossible for the court
to fashion an award that would allow both parties to pay their claimed monthly expenses,
which totaled $8,448.07 ($2,463.32 + $5,984.75), and it was reasonable to award Ms.
Copley about 30% of the income, which covered most but not all of her claimed
Pike App. No. 19CA901 12
expenses. Mr. Copley’s conclusory assertion that the temporary award was
inappropriate, unreasonable, and excessive is insufficient to establish error. See App.R.
16(A)(7) (an appellant’s brief shall include “[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”). Accordingly, we overrule the assignment of
error to the extent it asserts that the trial court abused its discretion when it awarded
temporary spousal support during the pendency of the proceeding.
D. Indefinite Spousal Support
{¶23} Mr. Copley acknowledges that the trial court addressed the R.C.
3105.18(C)(1) factors before it awarded indefinite spousal support in the divorce decree
and that “some factors could weigh in favor of an award of spousal support.” However,
he contends that the court “gave no practical consideration” to his ability to pay the
amount awarded. He asserts that the court should not have imputed $17,000 in gross
annual overtime income to him because the court did not explain how it derived that
figure, and overtime is voluntary and not guaranteed. He also asserts that the court
failed to consider more than half of his monthly living expenses even though it
considered all of Ms. Copley’s expenses. He maintains that the amount he “nets from
his wages is equal to or even less than what [Ms. Copley] receives in untaxed spousal
support on a monthly basis” and that the award “essentially forces him to continue to
work significant and steady overtime, as he ages” and “live in a camper on his mother’s
property for the unforeseen future while [Ms. Copley] is able to enjoy remaining in the
unencumbered marital residence.” Mr. Copley also asserts that the indefinite duration of
Pike App. No. 19CA901 13
the award is “unsupported and excessive, creating an undue financial hardship on him.”
Finally, he contends that it is “impossible” for this court to discern the basis for the award
because aside from discussing the R.C. 3105.18(C)(1) factors, the trial court did not
provide “any reasons” to support the amount or duration of the award.
{¶24} “A trial court evaluating the propriety of a spousal support award must
consider all of the statutory factors and not base its determination upon any one factor
taken in isolation.” Martindale v. Martindale, 4th Dist. Athens No. 18CA17, 2019-Ohio-
3028, ¶ 90, citing Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988),
paragraph one of the syllabus. Although the court has “broad discretion” to determine
whether a spousal support award “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. “In the absence of a request for
findings of fact and conclusions of law, however, Kaechele does not require the trial
court to list and comment on each factor.” Eichenlaub v. Eichenlaub, 2018-Ohio-4060,
120 N.E.3d 380, ¶ 13 (4th Dist.). “Rather, Kaechele and R.C. 3105.18(C) only require a
trial court to reveal the basis for its award in either its judgment or the record.” Id. “If the
record reflects that the trial court considered the statutory factors, and if the judgment
contains details sufficient for a reviewing court to determine that the support award is
fair, equitable, and in accordance with the law, the reviewing court will uphold the
award.” Martindale at ¶ 90, citing Eichenlaub at ¶ 13.
{¶25} The trial court’s decision to include $17,000 in gross annual overtime
wages in its calculation of Mr. Copley’s income was not unreasonable, arbitrary, or
Pike App. No. 19CA901 14
unconscionable. Under R.C. 3105.18(C)(1)(a), the court was required to consider the
parties’ income “from all sources,” and Mr. Copley’s testimony indicates that he regularly
earns overtime income. See Wormsley v. Wormsley, 3d Dist. Marion No. 9-14-04, 2014-
Ohio-3086, ¶ 19 (trial court did not abuse its discretion by including a figure for overtime
wages in calculating appellant’s annual income because the parties testified that he
“consistently worked overtime hours throughout the course of the marriage”).
Specifically, he testified that there have been “very few years” in which he did not have
overtime, that he “very rarely” turns overtime down, and that he has had overtime every
year since at least 2015. He earned $19,131.40 from overtime in 2015, an unknown
amount from overtime in 2016, $15,180.88 from overtime in 2017, and $46,652.30 from
overtime in 2018, which was unusual. As of April 18, 2019, he had earned $3,552.48 in
overtime in 2019, i.e., $39.472 hourly rate x 1.5 overtime rate x 60 hours, but he testified
that the best time for overtime is between May and August. The $17,000 figure the trial
court selected for gross annual overtime wages is less than the average overtime wages
Mr. Copley earned in 2015 and 2017—the only typical years for which the court was
given information.
{¶26} Mr. Copley’s reliance on Carey v. Carey, 2d Dist. Clark No. 2002-CA-109,
2004-Ohio-770, to support his position that the trial court’s consideration of overtime
wages was improper is misplaced. In that case, the husband argued that the trial court
abused its discretion in making an award of spousal support premised on him working 60
hours a week. Id. at ¶ 11, 18. The appellate court noted that in the context of child
support, “[s]ome courts have held that an obligated parent should not be required to work
more than a 40 hour week when an adequate support order could be made out of the
Pike App. No. 19CA901 15
obligor’s base salary.” Id. at ¶ 13. However, the appellate court found “the better view is
that a trial court may consider regular overtime pay in calculating the income of a spouse
for purposes of setting child or spousal support.” Id. at ¶ 18. The husband conceded
that “he regularly received overtime pay” and that “working 40 or 50 hours a week is not
unreasonable in light of his age and health” but argued that a “60-hour work week is
excessively onerous.” Id. The appellate court agreed. Id.
{¶27} In this case, unlike in Carey, the trial court did not premise its support
award on one spouse having to regularly work 60-hour weeks. Mr. Copley’s overtime
rate of pay is $59.208 ($39.472 x 1.5). For him to earn $17,000 in overtime wages in a
year, he would have to, on average work 5.52 hours of overtime a week
($17,000/$59.208/52 weeks). Mr. Copley has not demonstrated that an average 45.52-
hour work week is unreasonable under the circumstances. Accordingly, we overrule the
assignment of error to the extent it challenges the indefinite spousal support award
based on the trial court’s consideration of overtime wages.
{¶28} With regard to living expenses, we observe that “ ‘[a] party’s living
expenses are not one of the specifically enumerated factors to be considered when
determining spousal support.’ ” Albrecht v. Albrecht, 11th Dist. Trumbull No. 2013-T-
0124, 2014-Ohio-5464, ¶ 16, quoting Romano v. Jennison, 11th Dist. Lake No. 2005-L-
191, 2006-Ohio-6887, ¶ 19. “ ‘Thus, the trial court’s consideration of a party’s living
expenses “is discretionary and may be considered if the court finds such expenses to be
relevant.” ’ ” (Emphasis deleted in Albrecht.) Id., quoting Romano at ¶ 19, quoting Derrit
v. Derrit, 163 Ohio App.3d 52, 2005-Ohio-4777, 836 N.E.2d 39, ¶ 32 (11th Dist.); see
Pike App. No. 19CA901 16
R.C. 3105.18(C)(1)(n) (the court shall consider “[a]ny other factor that the court expressly
finds to be relevant and equitable”).
{¶29} Even though the trial court was not obligated to consider the parties’ living
expenses under R.C. 3105.18(C)(1), it did so, purporting to list in its spousal support
decision all of the expenses to which the parties had testified. The court later stated that
it had “considered all of the evidence” when it made the support award, but its list of Mr.
Copley’s expenses omitted more than half of the expenses to which he had testified—
insurance on the camper, fuel oil, cell phone, dry cleaning and laundry, life insurance,
auto insurance, federal and state income taxes, Medicare and Social Security
withholding, union dues, 401K contributions, and health, dental, and vision insurance. In
another section of the decision, the court discussed the health, dental, and vision
insurance expenses, but it did not mention any of the other omitted expenses.
{¶30} Once the court decided to consider the parties’ living expenses, it acted
unreasonably when it disregarded many of the expenses to which Mr. Copley had
testified without explanation. We can only speculate as to how consideration of this
testimony would have impacted the court’s determination of the amount and duration of
the support award. Accordingly, we sustain the assignment of error to the extent it
asserts that the trial court abused its discretion when it made the indefinite spousal
support award without considering all of Mr. Copley’s testimony regarding his expenses.
{¶31} We reverse the trial court’s judgment to the extent it awarded indefinite
spousal support and remand for the court to make a new support determination in
accordance with law and this decision. This decision renders moot Mr. Copley’s other
arguments about the indefinite spousal support award, i.e., that the duration of the award
Pike App. No. 19CA901 17
is inappropriate and that the court failed to adequately articulate the basis for the amount
and duration of the award, so we do not address them. We emphasize that our decision
should not be interpreted as a statement on the credibility of Mr. Copley’s testimony
regarding his expenses, the weight the trial court should give that testimony on remand,
or whether a $2,200 a month indefinite spousal support award would be appropriate and
reasonable based on the evidence in this case.
IV. CONCLUSION
{¶32} For the foregoing reasons, we sustain the assignment of error in part and
overrule it in part. We affirm the trial court’s judgment in part, reverse it in part, and
remand for further proceedings consistent with this opinion.
JUDGMENT AFFIRMED IN PART
AND REVERSED IN PART.
CAUSE REMANDED.
Pike App. No. 19CA901 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike
County Court of Common Pleas 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.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, 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.