Hutta v. Hutta

{¶ 51} I concur in part and dissent in part from the majority's disposition of appellant's first assignment of error. I agree that R.C. 3105.18(C)(1) directs the trial court to consider the income that appellee derives from all sources in determining the appropriate amount of spousal support including his income from his Subchapter S dental practice corporation. Specifically, any monetary benefits that appellee receives from the S-corporation whether in the form of reimbursement of personal expenses or provision of personal benefits, in addition to his annual salary, should be attributed to appellee as income.

{¶ 52} However, I fear the majority opinion may be broadly construed to hold that all the corporation's K-1 gross income should be attributable to appellee. I write to clarify that I believe that only the net income of the corporation, after deduction of corporate expenses (including appellant's salary) may be considered, in addition to appellee's salary, when determining spousal support.

{¶ 53} I find Bagnola conceptually distinguishable from the case sub judice. In Bagnola, this court held that the trial court's valuation and division of the marital business assets based on the "earned income" that appellant derived from it and the utilization of the same figures for calculation of spousal support did not result in double dipping. I agree. However the situation in the case at hand is not the same as that presented in Bagnola. Adding the entire gross K-1 income of the corporation after having already included appellant's annual salary from the corporation in determining spousal support essentially amounts to double-counting. I agree that the trial court should consider only the net income of the corporation after deducting corporate expenses including appellant's annual salary in determining Appellee's total income for spousal-support calculation.

{¶ 54} I respectfully dissent from the majority's conclusion that the trial court abused its discretion in limiting the spousal support duration to eight years. Although the majority proffers legitimate reasons for the trial court to select a different termination date for spousal support, I do not find the trial court abused its discretion in limiting the spousal support award to eight years.

{¶ 55} I concur in the majority's analysis and disposition of appellant's second assignment of error.