Kehoe v. Kehoe

[Cite as Kehoe v. Kehoe, 2013-Ohio-4907.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99404
MAURA A. KEHOE
PLAINTIFF-APPELLEE
vs.
ROBERT D. KEHOE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. CP-D-328835
BEFORE: E.A. Gallagher, J., Rocco, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 7, 2013
FOR APPELLANT
Robert D. Kehoe
Kehoe & Associates, L.L.C.
900 Baker Building
1940 East Sixth Street
Cleveland, OH 44114
FOR APPELLEE
Maura A. Kehoe
2991 Edgehill Road
Cleveland Heights, OH 44118
EILEEN A. GALLAGHER, J.:
{¶1} Appellant Robert D. Kehoe appeals the judgment of the Cuyahoga County
Court of Common Pleas, Division of Domestic Relations, following this court’s remand
which affirmed, in part, and reversed, in part, the trial court’s original divorce decree.
For the following reasons, we affirm the judgment of the trial court.
{¶2} The underlying facts and procedural posture of this case was set forth by
this court in Kehoe v. Kehoe, 8th Dist. Cuyahoga No. 99404, 2012-Ohio-3357, 974
N.E.2d 1229 (“Kehoe I”):
Appellant and appellee [Maura A. Kehoe] were married on July 24, 1982
and had three children, all of whom are currently emancipated. Appellant is
an attorney; his company is Kehoe & Associates, LLC, which he formed in
2004.
Appellee worked as an administrative assistant at several firms prior to
staying at home to raise the children. She has degrees from Marymount and
Ursuline Colleges. During the children’s teenage years, appellee taught
tennis and most recently, worked as a sales assistant at an antiques store.
On November 6, 2009, appellee filed a complaint for divorce, appellant
counterclaimed, and significant motion practice followed. Subsequently,
the action was tried on April 11, 12, 13, 14, and 15, 2011, and July 5 and 6,
2011.
***
Ultimately, the trial court awarded appellee $3,000 per month in spousal
support for ten years, health insurance, and awarded attorney fees of
$40,000, plus the cost of a financial expert in the amount of $17,510. In
addition, the trial court ordered appellant to pay all expenses of the marital
residence until it was sold.
Id. at ¶ 3-6.
{¶3} In Kehoe I, appellant appealed the trial court’s division of property,
apportionment of the debt obligations and spousal support awarded to appellee. We
held that the trial court erred in failing to distribute $30,000 to appellant as separate
interest in the marital residence, failing to treat education loans incurred during the
marriage as marital debt, making the spousal support obligation binding on appellant’s
estate and reaching an inequitable result in its award of spousal support and attorney’s
fees. We remanded solely for the purpose of allowing the trial court to correct these
errors and “achieve a more equitable result” in regards to the spousal support and
attorney fee awards. Id. at ¶ 29, 39.
{¶4} On remand the trial court partially vacated the earlier divorce decree. The
court recognized appellant’s $30,000 separate interest in the marital residence, ordered
education loans incurred during the marriage to be treated as marital debt and reduced
the $40,000 award of attorney fees along with a $17,510 award for appellee’s financial
expert to a single $35,000 award for attorney fees and litigation expenses to be paid in
monthly increments of $200. The trial court ordered appellant to be responsible for the
mortgage, insurance, taxes and utilities associated with the marital home and ordered the
home to be listed for sale within 30 days. The court froze any spousal support
obligations until the residence is sold. The trial court further reduced the spousal
support to $2,500 per month and ordered such support to terminate upon the death of
either party, appellee’s cohabitation with an unrelated male as if married or the
expiration of ten years. Appellant appeals from this judgment asserting four
assignments of error.
{¶5} Appellant’s first assignment of error states:
The trial court erred by failing to abide by the Eighth District Court of
Appeal’s decision rendered July 26, 2012 reversing and remanding the
judgment entry filed in this case on September 6, 2011.
{¶6} As a general rule, appellate courts review the propriety of a trial court’s
determination in a domestic relations case for an abuse of discretion. Gray v. Gray, 8th
Dist. Cuyahoga No. 95532, 2011-Ohio-4091, ¶ 7, citing Booth v. Booth, 44 Ohio St.3d
142, 144, 541 N.E.2d 1028 (1989). Abuse of discretion is more than simply an error of
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶7} The arguments presented in appellant’s first assignment of error are largely
redundant with the specific arguments he presents in his second, third and fourth
assignments of error. We note, however, that throughout all of his arguments appellant
repeatedly raises issues concerning evidentiary rulings rendered by the trial court at trial.
Our decision in Kehoe I only reversed the trial court’s divorce decree in part and our
remand was limited as described above. We did not reverse any of the trial court’s
evidentiary rulings excluding testimony or evidence and aside from correcting the above
errors, the mandate to the trial court was only to re-evaluate the evidence to reach a more
equitable result on the spousal support and attorney fee awards. Appellant’s arguments
regarding evidentiary rulings made at trial are well beyond the scope of the present
appeal and res judicata at this late stage.
{¶8} Furthermore, appellant argues that the trial court erred in failing to
recalculate the yearly income it attributed to both appellant and appellee in the original
divorce decree as part of our remand to re-evaluate the evidence and reach a more
equitable result. Appellant misunderstands our holding in Kehoe I. In the original
divorce decree the trial court found appellant’s income to be $120,000 per year and
appellee’s income to be $24,000 per year. Contrary to appellant’s arguments, our
decision in Kehoe I did not find the trial court’s income finding to be an abuse of
discretion. In fact, Kehoe I did not address appellee’s income at all. Instead, we
reversed the spousal support award because even with the $120,000 yearly income figure
attributed to appellant, the total obligations imposed on him by the first divorce decree
exceeded his ability to pay in the first year by more than $50,000. Kehoe I at ¶ 28. We
concluded that, “[a]s such, an equitable result has not been reached [and] appellant will
not be able to comply with the order.” Kehoe I at ¶ 28. Kehoe I did not remand for
the trial court to reconsider its findings on the income of appellant or appellee, but rather
to reconsider the obligations imposed in light of those income findings. Appellant’s
arguments to the contrary are overruled.
{¶9} Appellant’s second assignment of error states:
The trial court erred by failing to allocate the parties’ marital debts in a
manner consistent with R.C. 3105.171 by ordering husband to [pay] more
than one half the debts, including income taxes, and other business and
personal debts incurred during the marriage when such debts are incurred
for the direct benefit of the parties and their children.
{¶10} Appellant presents arguments within this assignment of error regarding
marital property issues that were outside the scope of our limited remand following
Kehoe I and, again, involve evidentiary rulings from trial. Those arguments are
overruled.
{¶11} On remand the trial court followed our mandate in Kehoe I and treated
certain educational loans for the benefit of the parties’ daughter as marital debt as this
debt was incurred during the course of the marriage.1 The trial court divided the
educational loan debt between the parties ordering appellant to pay 75% and appellee to
pay 25%. Relying on the income findings from the orginal divorce decree, which
again, were not found to be an abuse of discretion in Kehoe I, the trial court stated that
such division was reasonable in light of the disparity of income between the parties.
Appellant fails to advance an argument or provide any citation to authority to support his
bare assertion that the trial court’s division of the educational debt was inequitable or in
violation of R.C. 3105.171(C)(1). Since appellant has offered no substantive argument
on this issue, we find that appellant has failed to demonstrate an abuse of discretion by
the trial court in regards to the division of the educational debt.
{¶12} Appellant’s third assignment of error states:
The trial court erred by disregarding the factors in R.C. 3105.18 and
awarding wife an unreasonable and inappropriate amount of spousal
support when it failed to consider revenue from property division, wife’s
Appellant additionally raises the issue of certain student loans associated with the parties’
1
son, who began college after appellee filed for divorce. This court noted in Kehoe I that appellant
was not requesting any assistance from appellee with loans taken out after the divorce action was
initiated and such loans were not within the confines of our limited remand. As such, they are
outside the scope of this appeal.
full earning capacity, and ordered husband to pay health insurance,
mortgage and all other expenses related to the marital home, income taxes
and other personal and business debts and expenses in amounts that exceed
his annual income by at least $170,000, thereby rendering husband
insolvent and unable to pay his basic living expenses.
{¶13} In determining whether to grant spousal support and in determining the
amount and duration of the payments, the trial court must consider the factors listed in
R.C. 3105.18(C)(1)(a)-(n). Deacon v. Deacon, 8th Dist. Cuyahoga No. 91609,
2009-Ohio-2491, ¶ 57, citing Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197(1988), paragraph one of the syllabus. The goal of spousal support is to reach an
equitable result. Id. at 96. While there is no set mathematical formula to reach this
goal, the Ohio Supreme Court requires the trial court to consider all 14 factors of R.C.
3105.18(C) and “not base its determination upon any one of those factors taken in
isolation.” Id.
{¶14} In Kehoe I, we noted that appellant’s obligations exceeded his ability to pay
during the first year after the divorce decree. We noted that, per the original decree,
appellant was obligated to pay $40,000 towards appellee’s attorney fees, $17,510
towards appellee’s financial expert, spousal support of $36,000, health care costs of
roughly $37,764 and mortgage costs of $37,800. These obligations totalled $169,074
and well exceeded appellant’s yearly income of $120,000. As such, we concluded that
an equitable result had not been reached and remanded to the trial court to reevaluate and
achieve a more equitable result.
{¶15} We find that the trial court did reach an equitable result on remand. Per
the trial court’s new order, appellant is obligated to pay $3,150 per month towards the
mortgage of the marital home until it is sold. Appellant’s spousal support obligation is
not triggered until the home is sold. At that point appellant’s mortgage obligation is
replaced with $2,500 per month in spousal support. In addition, appellant has monthly
obligations of $200 towards appellee’s attorney fees and litigation expenses and up to
$1000 towards health care for appellee. This translates to a year-long obligation of
$52,200 until the marital home is sold and $44,400 after the home is sold. We find no
abuse of discretion in the trial court’s modification of spousal support.
{¶16} Appellant’s third assignment of error is overruled.
{¶17} Appellant’s fourth assignment of error states:
The trial court erred by ordering husband to pay wife’s attorney fees when
wife also received more than one-half of net marital assets and the
financial obligations imposed by the trial court exceed husband’s entire net
income, therefore rendering the order inequitable and without basis under
R.C. 3105.73.
{¶18} An award of attorney fees in a domestic relations action is within the sound
discretion of the trial court and will not be reversed on appeal absent an abuse of
discretion. Dureiko v. Dureiko, 8th Dist. Cuyahoga No. 94393, 2010-Ohio-5599, ¶ 26.
{¶19} Our concern in Kehoe I regarding the trial court’s award of attorney fees
stemmed from the impractical obligations the original divorce decree cumulatively
imposed upon appellant. As addressed in the third assignment of error, this concern no
longer exists. Furthermore, we note that the trial court significantly decreased
appellant’s obligations in regards to fees and expenses. In the original decree, appellant
was obligated to pay $40,000 in appellee’s attorney fees and $17,510 for appellee’s
financial expert. In the order following our remand, the trial court reduced these
obligations to a single award of $35,000 payable in monthly increments of $200. We
find no abuse of discretion in the trial court’s order.
{¶20} Appellant’s fourth assignment of error is overruled.
{¶21} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the lower court
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.
EILEEN A. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA A. BLACKMON, J., CONCUR