Collins v. Collins

[Cite as Collins v. Collins, 2011-Ohio-4973.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KATHY COLLINS JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
-vs- Hon. Patricia A. Delaney, J.
WILLIAM COLLINS Case No. 2010CA00283
Defendant-Appellant
and
KATHY COLLINS
Case No. 2010CA00299
Plaintiff-Appellant
-vs-
WILLIAM COLLINS
Defendant-Appellee
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Domestic
Realtions Court, Case No. 2010DR231
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: September 26, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TRACEY LASLO DAVID S. AKE
325 E. Main St. 101 Central Plaza, South, Ste. 600
Alliance, Ohio 44601 Canton, Ohio 44702
Stark County, Case No. 2010CA00283 and 2010CA00299 2
Hoffman, P.J.
{¶1} In Stark County App. No. 2010CA00283, defendant-appellant William
Collins (“Husband”) appeals the September 16, 2010 Final Entry/Decree of Divorce
entered by the Stark County Court of Common Pleas, Domestic Relations Division,
relative to the trial court’s property division. Plainiff-appellee therein is Kathy Collins
(“Wife”). In Stark County App. No. 2010CA00299, Wife appeals the same entry relative
to the duration of spousal support. Defendant-appellee therein is Husand.
STATEMENT OF THE FACTS AND CASE
{¶2} Husband and Wife were married on July 5, 1978, in Carroll County, Ohio.
Two children were born as issue of the marriage, both of whom are now emancipated.
On February 26, 2010, Wife filed a Complaint for Divorce, alleging as grounds gross
neglect of duty and extreme cruelty, and incompatibility. Husband filed a timely answer
and counterclaim, alleging as grounds extreme cruelty and incompatibility.
{¶3} The magistrate issued temporary orders on March 17, 2010. Pursuant
thereto, each party was to pay his/her own living expenses, and neither party was to
receive or pay spousal support. The matter came on for final hearing before the trial
court on September 2, 2010. The trial court issued its Final Entry/Decree of Divorce on
September 16, 2010. The trial court found the settlement monies from a sexual
harassment lawsuit the parties brought against Wife’s employer were Wife’s separate
property. The trial court ordered Husband to pay Wife spousal support in the amount of
$400/month for a period of seven years. The trial court retained jurisdiction over the
spousal support order. The trial court also ordered Husband to pay Wife the sum of
$73.00 in order to equalize the property division.
Stark County, Case No. 2010CA00283 and 2010CA00299 3
{¶4} Wife filed a Civ. R.60(A) Motion for Relief from Judgment, asserting the
trial court incorrectly found the parties had a marriage of twenty-three years rather than
the actual length of thirty-three years, and as a result of the miscalculation of the length
of the marriage, the duration of the spousal support order was inappropriate. The trial
court has not ruled on this motion.
{¶5} It is from the September 16, 2010 Final Entry/Decree of Divorce Husband
appeals, raising the following assignments of error:
2010CA00283
{¶6} “I. THE TRIAL COURT ERRED BY FAILING TO PLACE A VALUE ON
AND DIVIDE THE PARTIES’ HOUSEHOLD GOODS AND FURNITURE.
{¶7} “II. THE TRIAL COURT ERRED BY DECIDING THAT THE PROCEEDS
FROM A LAWSUIT WERE SEPARATE PROPERTY.”
{¶8} Wife appeals from the same, raising as error:
2010CA00299
{¶9} “I. THE TRIAL COURT ERRED IN THEIR COMPUTATION OF LENGTH
OF MARRIAGE, THEREBY RESULTING IN ERROR/MISCALCULATION OF
DURATION OF SPOUSAL SUPPORT, AS AND AGAINST THE TRIAL COURT’S OWN
FINDINGS AND THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶10} “II. THE TRIAL COURT FAILED TO NET THE SEXUAL HARASSMENT
LAWSUIT PROCEEDS IN ACCORD WITH PRIOR ORDER OF PAYMENT TO FORD
CREDIT, AS AND AGAINST THE TRIAL COURT’S OWN ORDERS AND THE
MANIFEST WEIGHT OF EVIDENCE.
Stark County, Case No. 2010CA00283 and 2010CA00299 4
{¶11} “III. THE TRIAL COURT ERRED IN RESTATING THE DEBT ON THE
2007 FORD F150 AS $11,500.00 RATHER THAN $22,786.56, AS AND AGAINST THE
TRIAL COURT’S OWN FINDINGS AND THE MANIFEST WEIGHT OF THE
EVIDENCE.”
2010CA00283
{¶12} In his first assignment of error, Husband maintains the trial court erred in
failing to value and subsequently divide the parties’ household goods and furniture. We
agree.
{¶13} A trial court enjoys broad discretion in fashioning an equitable division of
marital property and awarding spousal support. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 218. For an abuse of discretion to exist, the court's attitude must be
“unreasonable, arbitrary or unconscionable” and not merely an error of law or judgment.
Id. at 219. A reviewing court in domestic relations proceedings is guided by the
presumption the trial court correctly exercised its discretion. Babka v. Babka (1988), 83
Ohio App.3d 428, 433.
{¶14} Husband testified he had the household goods appraised. Although Wife
objected to the introduction of the appraisal report, Exhibit J, Husband testified the total
appraisal of the property was $5,735.00. Wife did not object to or move to strike that
testimony. We are aware the trial court did not admit the appraisal report into evidence.
{¶15} The trial court did not place a value on the marital property in the Final
Entry/Decree of Divorce. However, the trial court stated, “In order to achieve equity in
the division of property, the husband shall pay to the wife $73.00 within thirty (30) days
of this order.” Final Entry/Decree of Divorce at 3. Because the trial court had some
Stark County, Case No. 2010CA00283 and 2010CA00299 5
evidence as to the value of the marital property, it should have placed a value on such
and then order a division.
{¶16} Husband’s first assignment of error is sustained.
II
{¶17} In his second assignment of error, Husband contends the trial court erred
in determining the proceeds Husband and Wife received from the settlement of a
lawsuit were separate property. We agree.
{¶18} The determination of whether property is marital or separate is a mixed
question of law and fact and will not be reversed unless it is against the manifest weight
of the evidence. Torres v. Torres, Cuyahoga App. Nos. 88582 and 88660, 2007–Ohio–
4443, at ¶ 14. Once the characterization is made, the actual distribution of the property
will not be disturbed absent an abuse of discretion. Larkey v. Larkey (Nov. 4, 1999),
Cuyahoga App. No. 74765, citing Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 421
N.E.2d 1293.
{¶19} Marital property is defined as “[a]ll real and personal property that
currently is owned by either or both of the spouses, including, but not limited to, the
retirement benefits of the spouses, and that was acquired by either or both of the
spouses during the marriage.” R.C. 3105.171(A)(3)(a)(i). “ ‘Separate property’ means
all real and personal property and any interest in real or personal property that is found
by the court to be any of the following: * * *(vi) Compensation to a spouse for the
spouse's personal injury, except for loss of marital earnings and compensation for
expenses paid from marital assets.”
Stark County, Case No. 2010CA00283 and 2010CA00299 6
{¶20} Both Husband and Wife testified the settlement was awarded as lost
wages. Accordingly, we find the trial court's finding the settlement award was separate
property is against the manifest weight of the evidence. R.C. 3105.171(A)(6)(a).
{¶21} Husband’s second assignment of error is sustained.
Appeal No. 2010CA00299
I
{¶22} In her first assignment of error, Wife asserts the trial court erred in finding
the length of the marriage to be 22 years and, as a result, miscalculated the duration of
the spousal support award.
{¶23} It is well-established that the trial court enjoys wide latitude in determining
the appropriateness as well as the amount of spousal support. Bolinger v. Bolinger
(1990), 49 Ohio St.3d 120. Such an award will not be reversed unless a reviewing court,
after considering the totality of the circumstances, finds that the trial court abused its
discretion. Kunkle v. Kunkle (1990), 51 Ohio St .3d 64, 67; Cherry v. Cherry (1981), 66
Ohio St.2d 348, 352. “The term ‘abuse of discretion’ connotes more than an error of law
or judgment, it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.” Blakemore, supra at 219.
{¶24} “In making a spousal support award, a trial court must ‘consider all of the
relevant factors in [ R.C. 3105.18 ] * * * then weigh the need for support against the
ability to pay’.” Layne v. Layne (1992), 83 Ohio App.3d 559, 562-563. The resulting
award must be “fair, equitable and in accordance with the law.” Kaechele v. Kaechele
(1988), 35 Ohio St.3d 93, 94. An equitable result requires that “to the extent feasible,
each party should enjoy, after termination of a marriage, a standard of living comparable
Stark County, Case No. 2010CA00283 and 2010CA00299 7
to that established during the marriage as adjusted by the various factors of [R.C.
3105.18].” Buckles v. Buckles (1988), 46 Ohio App.3d 102, 110.
{¶25} The parties were married on July 5, 1978. The date of the final hearing
was September 2, 2010. This is a period of 32 years, not 22 years as the trial court
found. Accordingly, we sustain Wife’s first assignment of error, and remand the matter
to the trial court to correct the Final Entry to reflect the correct length of the marriage.
Upon remand, the trial court shall reconsider all the factors in redetermining spousal
support in light of this correction.1
II, III
{¶26} In light of our disposition of Husband’s second assignment of error in Stark
App. No. 2010CA00283, we find Wife’s second and third assignments of error to be
premature.
1
To clarify, this Court is not directing a change in the spousal support order but merely
a redetermination and possible change in light of the correction as to length of the
marriage.
Stark County, Case No. 2010CA00283 and 2010CA00299 8
{¶27} The judgment of the Stark County Court of Common Pleas, Domestic
Relations Division, is reversed and the matter remanded for further proceedings
consistent with this Opinion and the law.
By: Hoffman, P.J.
Delaney, J. concurs, and
Wise, J. dissents
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. JOHN W. WISE
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Stark County, Case No. 2010CA00283 and 2010CA00299 9
Wise, J., dissenting in part
{¶28} I respectfully dissent from the majority’s decision to sustain Husband’s first
assigned error. The trial court in this instance prepared a detailed chart regarding
marital property division, which provides an explanation of how the court arrived at the
equalization payment of $73.00. At trial, the court ultimately rejected Husband’s
appraisal exhibit “J” concerning the household goods (Tr. at 76) and implicitly gave
them zero value as marital property in the property division chart. I am not persuaded
that the trial court’s decision in this regard rose to the level of an abuse of discretion.
s/ John W. Wise __________________
HON. JOHN W. WISE
Stark County, Case No. 2010CA00283 and 2010CA00299 10
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KATHY COLLINS :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
WILLIAM COLLINS :
:
Defendant-Appellant : Case No. 2010CA00283
:
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas, Domestic Relations Division, is reversed and the
matter remanded for further proceedings consistent with our Opinion and the law.
Costs assessed to Appellee.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. JOHN W. WISE
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KATHY COLLINS :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
WILLIAM COLLINS :
:
Defendant-Appellee : Case No. 2010CA00299
:
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas, Domestic Relations Division, is reversed and the
matter remanded for further proceedings consistent with our Opinion and the law.
Costs assessed Appellee.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. JOHN W. WISE
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY