Folberth v. Folberth

[Cite as Folberth v. Folberth, 2022-Ohio-3384.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
PETER JAMES FOLBERTH, :
Appellee and Cross-Appellant, : CASE NOS. CA2021-05-047
CA2021-05-049
:
- vs - OPINION
: 9/26/2022
PAMELA GAIL FOLBERTH, :
Appellant and Cross-Appellee. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR19-01-0008
The Lampe Law Office, and Thomas S. Sapinsley; Stagnaro Hannigan Koop, Co., LPA, and
Michaela M. Stagnaro, for appellee and cross-appellant.
Traci Combs-Valerio, LLC, and Traci Combs-Valerio, for appellant and cross-appellee.
PIPER, J.
Procedural History
{¶1} On January 8, 2019, James Folberth ("Husband") filed an amended complaint
for divorce against Pamela Folberth ("Wife") in the Butler County Court of Common Pleas,
Domestic Relations Division. Wife answered and counterclaimed on January 31, 2019.
Butler CA2021-05-047
CA2021-05-049
The parties resolved significant issues through stipulations, including ownership of the
marital residence, property inventories, and, for purposes of this appeal, significant financial
accounts that accrued interest, dividends, and other gains.
{¶2} The issue of the amount of spousal support Husband was to provide Wife was
not resolved through stipulation or settlement. The trial court held several hearings between
August and November 2019. After taking the matter under advisement, the trial court ruled
on the remaining disputed issues, set the amount of spousal support, and entered a final
decree of divorce on April 19, 2021. Wife filed an appeal and Husband filed a cross-appeal.
The appeals were consolidated. Subsequently, Wife moved to dismiss her appeal. On
December 15, 2021, this court issued an entry reinstating Husband's pending claims. As a
result, this appeal only addresses Husband's assignment of error.
Relevant Facts
{¶3} Husband and Wife married on July 31, 1999. Prior to their marriage, the parties
entered into an antenuptial agreement. Under the terms of the agreement, the parties
agreed to waive claims to each other's separate property held at the time of their marriage
including any appreciation upon those assets as stated in paragraph 3.02. Paragraph 3.03
of the agreement provided:
In the event of a legal separation or a termination of the parties'
marriage by annulment, divorce, or dissolution proceeding in a
court of competent jurisdiction, this agreement shall thereupon
be conclusive as to the ownership of the property listed in
Exhibit A, and neither party shall take, demand, claim or receive
any such property listed in Exhibit A in a division of property or
as spousal support and maintenance.
Paragraph 3.05 of the agreement further addressed spousal support in the event of a
termination of the marriage by providing:
This agreement does not preclude spousal support, if
appropriate, in the event the parties ever divorced; however, this
-2-
Butler CA2021-05-047
CA2021-05-049
agreement is not intended to create a right to spousal support if
none exists at the time the parties ever divorced.
The agreement also specified that any assets acquired after the marriage should be
designated as marital property:
All assets acquired after the marriage, including interest,
dividends and appreciation earned on such after acquired
assets, shall be designated as marital property unless
specifically excluded herein or designated as non-marital
property by statute.
{¶4} Husband filed his complaint for divorce nearly 20 years later. Since their
marriage, the parties have accumulated more assets. At the time the parties entered into
the antenuptial agreement, Husband listed net assets in the amount of $1,748,344, while
Wife had net assets in the amount $215,300. By the time of their divorce, the trial court
calculated that Husband retained $3,573,759 in assets while Wife retained $1,139,986.1
{¶5} Although the parties had reached agreement on a number of issues, they were
not able to resolve the issue of spousal support. A portion of testimony was spent focusing
on Husband's financial maneuverings. This included the introduction of testimony
concerning Husband's separate assets that have since evolved from the assets listed in
"Exhibit A" in the antenuptial agreement. Initially, there was discussion below about the
need to obtain expert testimony concerning the valuation or tracing of the accounts below.
There is no dispute that the identity of the accounts listed in "Exhibit A" have changed in
the two decades since the parties were married. The record reflects that, over the years,
Husband moved some marital assets into different accounts while preserving much of his
own separate accounts. There was also evidence that Husband controlled the parties'
finances and that Wife's business had operated at a loss in certain years, which was then
1. The trial court noted that $708,785 of Wife's amount is either in a retirement account or consists of business
assets that must be maintained so that she can earn income until retirement.
-3-
Butler CA2021-05-047
CA2021-05-049
claimed as a business loss on their joint income tax returns. Despite some uncertainty
below, the parties determined there was no longer a need for expert testimony after they
entered into their stipulations. In relevant part, the parties agreed that several accounts
should be shared while others should remain Husband's separate property. The parties'
stipulated ownership interests and approximate valuations of the accounts are listed below:
Husband's interest Property2 Wife's interest
100% Ameriprise 0154 0%
($1,602,621.31)
100% Ameriprise 6918 0%
($1,202.18)
65% Ameriprise 5754 35%
($488,525.92)
50% Ameriprise 4190 50%
($131,635.06)
50% Huntington Bank 5776 50%
($52,368.80)
50% Raymond James 1914 50%
($84,430.20)
{¶6} In addition to these accounts, the parties also entered into a stipulation regarding
Husband's pension from Northrup Grumman that was to be divided by a Qualified Domestic
Relations Order ("QDRO").
{¶7} At the time of the final hearing, both parties were 62 years old and had no
significant health problems. Husband testified that he retired in 2015 and was no longer
employed in any capacity. Husband has an engineering degree and previously worked as
an engineer for Northrop Grumman and BIT Systems. Husband's income is derived from
his interest and dividends on investments, along with his monthly pension from Northrop
Grumman. When considering Husband's income, the trial court noted that there were
irregularities in some of the transactions that had occurred over the years. The trial court
2. The value of these accounts has likely changed. The trial court listed these values in the property division,
which neither party disputes.
-4-
Butler CA2021-05-047
CA2021-05-049
found that the most reliable evidence for determining investment income came from the
parties' tax returns. The trial court also noted that Husband has a trust that provides income.
The trial court stated that review of the 2016 tax return revealed that Husband received
gross income in the amount of $37,001 in dividends. The trial court also noted that Husband
failed to include all schedules in his 2017 and 2018 tax returns and that it was unable to
determine the specific source of all his income or the status of his investments for those
years. Therefore, the trial court averaged the additional sources of income from 2016
through 2018 and determined that Husband could reasonably expect an additional $44,447
annually.
{¶8} Wife testified that she earned a high school diploma and was raised in her family
sewing business, Sew-Ezy, which she operated prior to the marriage. Wife testified that
she did not have any retirement accounts and that the mutual funds that she once had are
now gone. Wife testified that her business has been declining due to several factors,
including internet sales and the loss of a larger sewing machine contract. The trial court
noted that Wife filed her own separate tax return for 2017, which showed more reasonable
expenses than past years, and determined that the business could generate a reasonable
net income for her of $16,454.
{¶9} In determining spousal support, the trial court placed significant emphasis upon
the parties' income from all sources, their relative earning abilities, retirement benefits, and
relative assets and liabilities. The trial court averaged the interest and dividend income for
the accounts and calculated the amount of annual income the parties could expect in
determining the award of spousal support. The trial court also found that Husband had
other sources of income based upon review of his tax returns. Thus, the trial court found
the parties could expect annual income from various sources as follows:
-5-
Butler CA2021-05-047
CA2021-05-049
Income source Husband Wife
Northrop Grumman pension $8,468.04 $8,468.04
Sew-Ezy $0 $16,454
Ameriprise 0154 $28,982 $0
Ameriprise 4190 $4,898.50 $4,898.50
Ameriprise 5754 $9,595 $5,166.35
Other income $44,447 $0
{¶10} The trial court also placed significant emphasis on the assets held by the
parties in deciding to award Wife spousal support. The trial court observed that Husband
retains a significant investment in his firearms collection, which was purchased with a
combination of marital and non-marital funds. Husband also retains the marital residence
with a value of $400,000 and no mortgage encumbrance.
{¶11} The trial court found that Wife has no retirement savings other than what she
was allocated from Husband's pension. It also noted that Wife operates a business which
is not highly profitable and has nominal income besides the income she receives from the
allocation of the Ameriprise accounts. Wife was allocated her business assets and real
estate at their stipulated value.
{¶12} Following a thorough review of the evidence introduced below, the trial court
determined that Husband's reasonable monthly expenses were $3,568 and that Wife's
reasonable monthly expenses were $4,384. The trial court found that Wife should be
awarded spousal support in the amount of $2,200 per month.3 The trial court ordered that
spousal support continue until Wife's death, remarriage, or cohabitation with another adult.
The trial court retained jurisdiction over the amount of spousal support. The trial court
calculated that, after the completion of the property division and following the payment of
spousal support, Husband would have net monthly income of $5,065 and Wife would have
3. The trial court ordered spousal support to decrease from $2,900 to $2,200 following the completion of the
property division.
-6-
Butler CA2021-05-047
CA2021-05-049
net monthly income of $4,811. After the trial court entered its final decree, the parties timely
appealed. Following the dismissal of Wife's appeal, the only matter now pending is
Husband's appeal. We now consider Husband's sole assignment of error:
{¶13} Assignment of Error No. 1:
{¶14} THE TRIAL COURT ERRED AS A MATTER OF LAW, AND ABUSED ITS
DISCRETION, REGARDING THE AWARD OF SPOUSAL SUPPORT TO
APPELLANT/CROSS-APPELLEE.
{¶15} Husband argues the trial court erred in its spousal support determination. A
trial court has broad discretion in determining whether to award spousal support, as well as
the amount and duration of such award, based on the facts and circumstances of each
case. Curry v. Curry, 12th Dist. Butler No. CA2016-07-136, 2017-Ohio-8127, ¶ 15. Absent
an abuse of discretion, a spousal support award will not be disturbed on appeal. Id.{¶16} "A trial court has a statutory duty to base a spousal support award order on a
careful and full balancing of the factors in R.C. 3105.18(C)(1)." Id. at ¶ 13. These factors
include:
(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
-7-
Butler CA2021-05-047
CA2021-05-049
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.
R.C. 3105.18(C)(1)(a)-(n); Macknight v. Macknight, 12th Dist. Butler No. CA2021-07-078,
2022-Ohio-648, ¶ 47.
{¶17} Husband challenges several aspects of the trial court's decision awarding
Wife spousal support. He takes issue with the trial court's calculation of his income, the
calculation of Wife's income, as well as the duration of support. He also separately claims
the trial court erred in determining the amount of spousal support awarded. We will address
each issue below.
Antenuptial Agreement
{¶18} We begin by addressing Husband's first issue, which is the overarching issue
in this appeal. Husband argues that the trial court erred when it calculated his income for
purposes of determining reasonable spousal support. He does so by claiming that the
-8-
Butler CA2021-05-047
CA2021-05-049
antenuptial agreement he had with Wife prohibited the trial court from considering the
income he generates from his separate property interests. For example, there is no dispute
that Husband retained the entirety of his separate property interest in the Ameriprise 0154
account, which contained approximately $1,602,621.31. From that account, the trial court
found that Husband could expect to earn approximately $28,982 in annual income.4
{¶19} An antenuptial agreement is a contract which determines the distribution of
assets of each party when the marriage terminates. Dever v. Dever, 12th Dist. Clermont
Case No. CA98-07-050, 1999 Ohio App. LEXIS 1625, at *8 (Apr. 12, 1999), citing Fletcher
v. Fletcher, 68 Ohio St. 3d 464, 466-67 (1996). Determining the construction of a contract
is a matter of law that is subject to de novo review. Id. See Menkhaus v. Menkhaus, 1st
Dist. Hamilton Nos. C-210219 and C-210430, 2022-Ohio-2369, ¶ 31
{¶20} "When the terms of the contract are clear and unambiguous, courts may not
create a new contract by finding intent not expressed by the terms." Menkhaus at ¶ 31,
citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 245-246 (1978). "In
analyzing an unambiguous contact, words must be given their plain and ordinary meaning."
Id. "If a contract, or portions of a contract, are found to be ambiguous, then the courts must
resort to principles of contract construction." Id. at ¶ 17, citing Shifrin v. Forest City Ent.,
Inc., 64 Ohio St.3d 635, 638 (1992). "'All provisions of a contract must be construed
together in determining the meaning and intention of any particular clause or provision
therein.'" Id.{¶21} Husband's argument is based, in part, upon language contained in paragraph
3.03 of the agreement, which states:
4. The trial court's decision discusses the antenuptial agreement, but does not discuss the issue Husband
now raises in depth. From review of the record, it appears the trial court did not find any merit to Husband's
arguments.
-9-
Butler CA2021-05-047
CA2021-05-049
In the event of a legal separation or a termination of the parties'
marriage by annulment, divorce, or dissolution proceeding in a
court of competent jurisdiction, this agreement shall thereupon
be conclusive as to the ownership of the property listed in
Exhibit A, and neither party shall take, demand, claim or receive
any such property listed in Exhibit A in a division of property or
as spousal support and maintenance.
Husband then cites to paragraph 3.05 of the antenuptial agreement, which states:
This agreement does not preclude spousal support, if
appropriate, in the event the parties ever divorced; however, this
agreement is not intended to create a right to spousal support if
none exists at the time the parties ever divorced.
In arguing his position, Husband does not direct this court to any other applicable provision
but concludes "it appears, from the plain and unambiguous language of the Agreement,
that any income realized or generated by a party's separate asset could not be considered
for spousal support and maintenance (See, Antenuptial Agreement, para. 3.05)."
Nevertheless, we have reviewed the antenuptial agreement in its entirety.
{¶22} Pursuant to the parties' stipulations, the antenuptial agreement is both valid
and binding. Wife, however, does not agree with Husband's interpretation of the antenuptial
agreement. In accordance with the stipulations, Husband has retained significant separate
property interests. The issue before this court is whether the antenuptial agreement limits
the amount of spousal support owed to Wife because a portion of Husband's income is
derived from his separate property.
{¶23} Following review of the record, including the clear and unambiguous language
contained in the parties' antenuptial agreement, we find Husband's argument to be without
merit. While Husband argues that the antenuptial agreement prevents a court from
considering income he generates from his separate assets, his argument represents a
significant departure from the plain language used by the parties in the antenuptial
agreement. That is, the clear and unambiguous language of the agreement clearly provides
- 10 -
Butler CA2021-05-047
CA2021-05-049
that the separate property listed in "Exhibit A" is to be "conclusive" as to the ownership
issues of each party. This means that neither party is entitled to "take, demand, claim, or
receive" any such separate property in a division or property or as spousal support and
maintenance. Paragraph 3.05 merely states that the agreement does not preclude spousal
support. However, the agreement is silent as to whether the income produced by the
separate property may be considered for purposes of spousal support.
{¶24} As such, we conclude that while the antenuptial agreement states premarital
or separate assets cannot be given as a property award or as spousal support, it does not
specifically exclude the court from considering the income that those assets generate for
purposes of determining spousal support. If the parties had intended to limit the award of
spousal support based upon this separate property interest, the agreement should have
specified as much. Instead, the agreement contemplated an award of spousal support
without any such limitation in how Husband's income was calculated. Paragraph 3.05
merely states:
This agreement does not preclude spousal support, if
appropriate, in the event the parties ever divorce; however, this
agreement is not intended to operate a right to spousal support
if none exists at the time the parties ever divorced.
Rather than operating as a limitation to the calculation of Husband's income, paragraph
3.03 only prevents the outright allocation of separate property held prior to the marriage.
{¶25} Similar arguments have been made and rejected in the past. In Cole v. Cole,
8th Dist. Cuyahoga No. 84319, 2004-Ohio-6638, the Eight District considered a similar
argument where a husband claimed that an award of spousal support was improper
because it exceeded the income he receives from marital property. Id. at ¶ 24. Husband
argued that the trial court was essentially awarding his wife a portion of his separate
property which was prohibited by the parties' antenuptial agreement and their stipulation
- 11 -
Butler CA2021-05-047
CA2021-05-049
that any passive income or appreciation of their separate property would remain their own.
Id. The court of appeals rejected husband's argument, noting that the antenuptial
agreement contained no provision regarding spousal support and the parties' stipulation did
not state that income derived from their separate income could be excluded from the
spousal support calculation. Id. at ¶ 25.
{¶26} Despite his arguments to the contrary, there is no provision in the agreement
that specifically excludes consideration of income generated from Husband's separate
property in calculating reasonable spousal support. This conclusion is consistent with this
court's prior decisions where we have repeatedly distinguished between "property"
distributed to a spouse and consideration of the "income" produced by the property for
support purposes. Sieber v. Sieber, 12th Dist. Butler Nos. CA2014-05-106 and CA2014-
05-114, 2015-Ohio-2315, ¶ 57; Ghanayem v. Ghanayem, 12th Dist. Warren Nos. CA2018-
12-138 and CA2018-12-142, 2020-Ohio-423. In Ghanayem, this court held that the
husband's future bonuses, some of which came in the form of stock options, were
appropriate considerations in the calculation of support obligations. Id. at ¶ 22. Although
those bonuses were appropriate in calculating the spousal support award, this court made
clear that the wife did not have a separate property interest in husband's stock account,
wherein the stocks he earned were held. Id. at ¶ 25. While Ghanayem did not involve
application of an antenuptial agreement, we find it mentionable because it highlights an
area of law that is sometimes confused by litigants, namely the distinction between
"property" and "income" as it relates to support calculations. Id. at ¶ 24-25.
{¶27} While Husband argues differently, the plain language of the antenuptial
agreement does not specifically exclude income he derives from his separate property in
the calculation of spousal support. As a result, we find the trial court did not err by including
- 12 -
Butler CA2021-05-047
CA2021-05-049
those income sources in its calculation of support.
Husband's Other Income
{¶28} Husband raises another issue with the trial court's decision regarding his
income, including the "other income" that the trial court determined Husband could
reasonably expect to earn in a given year. As previously stated, the trial court noted that
there were irregularities in certain transactions, yet found that the most reliable evidence
was the parties' income tax returns for determining investment income. The trial court found
that Husband has a trust that provides income. The trial court considered Husband's tax
returns between 2016-2018 to ascertain the amount of money he could reasonably expect
each year. Since Husband did not include all schedules with his 2017 and 2018 tax returns,
the trial court was unable to determine the sources of Husband's "other income." Therefore,
due to the evidence Husband produced, the record does not clearly establish how much
income reported was capital gains income. As a result, the trial court considered a three-
year average of "other income" and found that Husband could expect an average of $44,447
in "other income."
{¶29} On appeal, Husband argues that the trial court's decision was erroneous for
a number of reasons, claiming inter alia, that once again the sums should have been
excluded based upon application of the antenuptial agreement, that any capital gains
income is non-recurring, that the trial court erred in utilizing the gross figure as opposed to
the net figure, and that the trial court should have considered other capital losses and
averaged his gains and losses over a different period of time.
{¶30} Despite his arguments to the contrary, we find the trial court's decision
regarding the calculation of his income did not amount to an abuse of discretion. Although
Husband raises a litany of issues on appeal without much elaboration, we find no err in the
- 13 -
Butler CA2021-05-047
CA2021-05-049
trial court's consideration of the evidence before it. Husband had ample opportunity to
present his issues for the trial court's consideration below. Since Husband did not include
all schedules with his 2017 and 2018 tax returns, the trial court was unable to determine
the sources of Husband's "other income." While Husband argues that this three-year period
was too short and not representative of his earnings, it is well established that weighing
conflicting evidence and credibility determinations are matters entrusted to the trial court,
which was in the best position to evaluate the evidence and assess the credibility of the
parties. Spillane v. Spillane, 12th Dist. Butler No. CA2019-12-206, 2020-Ohio-5052, ¶ 23.
Upon thoroughly reviewing the record, we find no abuse of discretion in the calculation of
Husband's income for spousal support purposes. We further note, that if these figures
change, Husband may seek relief by seeking a modification of his spousal support. R.C.
3105.18(F); Samblanet v. Samblanet, 12th Dist. Butler No. CA2013-03-040, 2013-Ohio-
5768, ¶ 19.
Wife's Income
{¶31} Husband also alleges the trial court erred in its calculation of Wife's income.
He states that Wife had $12,159 in capital gains in 2017. On appeal, Husband suggests
that if he had capital gains income, then Wife should also have capital gains income.
Although he admits that Wife's 2018 tax return was not admitted in evidence, he states that
Wife should have other interest and dividend income that should be included in the
calculation of her income. Husband admits, though, that such a calculation would be "pure
speculation." Despite this acknowledgement, Husband then calculates an approximate
value that he believes should be calculable to Wife based upon assumptions that he roughly
calculates in his brief.
{¶32} Following review, we find the trial court did not abuse its discretion in the
- 14 -
Butler CA2021-05-047
CA2021-05-049
calculation of Wife's income. Although there is some confusion surrounding the issues
here, we agree that attributing more income to Wife through additional sources would be
pure speculation. Gerdes v. Gerdes, 12th Dist. Butler No. CA2019-07-106, 2020-Ohio-
3405, ¶ 21 (an appellate court does not engage in speculation); Wilhoite v. Kast, 12th Dist.
Warren No. CA2001-01-001, 2001-Ohio-8621, 2001 Ohio App. LEXIS 5996, *23 (Dec. 31,
2001) ("[a] meaningful review of a trial court's decision must be based on the record before
us, not mere conclusory assertions in an appellate brief"). Confusion surrounding this issue
is further compounded because Husband fails to inform this court of the source of the capital
gains. He generically states that Wife should have capital gains income for 2018 but admits
that he is speculating. Husband may be suggesting that a financial account which Wife
retains some ownership of accrued some form of capital gain. Nevertheless, there is no
clear indication for this court to conclude that Wife retained an asset from which there will
be a capital gain that should be considered in the calculation of spousal support at this time.
Without more, this court is left to speculate about any capital gain that should be attributable
to Wife.
{¶33} In this case, the trial court conducted a thorough analysis of Wife's income.
The trial court found that Wife's sewing business had a net income of $14,212 in the parties'
first year of marriage. The next year, the business had a net income of $22,782. The trial
court noted that the business expensed significant resources over the course of several
years that resulted in losses. Wife testified that the business had taken a downturn.
Husband did not dispute that the business had a poor outlook. After considering the
respective testimonies, the trial court concluded that Wife "is working closer to her capacity
given her formal education level and lack of work experience outside of the sewing
business." Husband failed to present any concrete evidence that Wife could earn more
- 15 -
Butler CA2021-05-047
CA2021-05-049
than she is earning now. See Daniel v. Hester, 12th Dist. Butler No. CA2016-02-037, 2016-
Ohio-7543, ¶ 17 (spouse did not meet burden of proof therefore the appellate court cannot
find that the court abused its discretion in failing to impute income to the other spouse).
Accordingly, we find the trial court did not abuse its discretion in determining that Wife could
expect $16,464 in yearly earnings along with the other sources pursuant to the parties'
stipulation.5
Calculation of Spousal Support Award
{¶34} Husband's third issue argues that the trial court erred in establishing the
amount of spousal support. Husband states that until the division of assets between the
parties, he will have a spousal support obligation of $2,900 per month and that Wife will
receive 56 percent of their combined income. However, he also acknowledges that once
the property division is complete, Husband's obligation will be reduced to $2,200 per month.
At that point, Wife will have 49 percent of their combined income while Husband will have
51 percent. Husband argues that the trial court's award does not need to equalize the
parties' incomes and suggests that the award is intended to penalize him for actions taken
during the marriage. He also asserts that the trial court was overly concerned with the
disparity of incomes and assets of the parties when that disparity predated the marriage.
{¶35} Following review, we find Husband's argument is without merit. The record in
the present case demonstrates the trial court reviewed all relevant R.C. 3105.18(C)(1)
factors in determining the amount and duration of the spousal support award. The trial court
5. Husband also notes that Wife's business "showed a loss in most years" because it had been heavily
expensed. As noted previously, there was testimony that Husband was in charge of the parties' finances,
which included some involvement in Sew-Ezy. Husband claims that the trial court failed to "add back in
$3,438.00 deducted as a business expense." We find no error with the trial court's decision. The trial court
heard testimony on this issue. It was undisputed that the business was not doing well. The parties had
claimed losses on the business in their joint tax returns. Considering the evidence presented, the trial court's
calculation of Wife's income was reasonable and not an abuse of discretion.
- 16 -
Butler CA2021-05-047
CA2021-05-049
specifically stated that it considered factors of particular significance, including "the length
of the parties' marriage, the parties' disparate incomes from various financial assets, the
depletion of marital assets, [Wife's] lack of income from independent assets or retirement,
her limited earning capacity through her business, and the extensive assets retained by
[Husband]." The trial court cited the relevant factors with an appropriate analysis
considering the applicability of the factor and the relative weight it had in the court's ultimate
decision. On appeal, it is clear Husband disagrees with the weight the trial court afforded
the applicable factors and the conclusions it drew from the evidence. However,
disagreement is insufficient to demonstrate the trial court abused its discretion. See
Spillane, 2020-Ohio-5052 at ¶ 32. There is no evidence that the trial court intended to
penalize Husband or that it was overly concerned with any other consideration, prejudicially
impacting Husband. Accordingly, we find the trial court's decision is supported by
competent and credible evidence.
Duration of Spousal Support/Reservation of Jurisdiction
{¶36} In his fourth issue, Husband argues that the trial court's award of indefinite
spousal support was an abuse of discretion. In addition, he argues the trial court failed to
reserve jurisdiction.
{¶37} An award of spousal support of an indefinite duration is authorized where the
marriage was long term, the parties are of advanced age, or there is a homemaker-spouse
with little opportunity to develop meaningful employment outside the home. Gillespie v.
Gillespie, 12th Dist. Clermont No. CA2011-05-034, 2012-Ohio-51, ¶ 9, citing Kunkle v.
Kunkle, 51 Ohio St.3d 64, 68-69 (1990). Further, the payee spouse must not have the
resources, ability, and potential to be self-supporting. Id. Marriages lasting 16 to 17 years,
a lesser duration than in this case, have been found to be long term for the issuance of
- 17 -
Butler CA2021-05-047
CA2021-05-049
indefinite spousal support. Id; Coward v. Coward, 5th Dist. Licking No. 15-CA-46, 2016-
Ohio-670, ¶ 10.
{¶38} In the present case, the trial court ordered spousal support to continue
indefinitely subject to termination by the death of either party or Wife's remarriage or
cohabitation. Based upon our review of the record, we find the trial court did not abuse its
discretion in this regard. This was a marriage that lasted approximately 20 years. Both
parties are at or near retirement. Husband has retained significant assets that generate
income. Again, if circumstances change, he is entitled to seek a reduction of spousal
support. R.C. 3105.18(F); Samblanet, 2013-Ohio-5768 at ¶ 19. We are aware that
Husband is claiming the trial court did not reserve jurisdiction as to the duration of spousal
support suggesting that he is without the ability to revisit this issue should there be a change
in circumstances. However, the trial court's entry clearly states that it retained jurisdiction
over the amount of spousal support. We do not understand the trial court's reservation of
jurisdiction to be prejudicial to Husband, nor does it prevent him from seeking a reduction
in spousal support should there be a change in circumstances. Accordingly, we find the
trial court did not abuse its discretion in ordering an indefinite duration of spousal support.
{¶39} Following review of entire record and issues raised by Husband, we find the
trial court did not err in its calculation of spousal support. Husband's sole assignment of
error is overruled.
{¶40} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
- 18 -