Blakemore v. Blakemore

• Decision Date: 06 July 1983
• Docket Number: No. 81-1935,81-1935
• Citation: 450 N.E.2d 1140,5 OBR 481,5 Ohio St. 3d 217
• Parties: , 5 O.B.R. 481 BLAKEMORE, Appellee, v. BLAKEMORE, Appellant.
• Court: Ohio Supreme Court

Page 217

5 Ohio St.3d 217

450 N.E.2d 1140, 5 O.B.R. 481

BLAKEMORE, Appellee, v.BLAKEMORE, Appellant.

No. 81-1935.

Supreme Court of Ohio.

July 6, 1983.

Syllabus by the Court

Absent a showing that a trial court abused its discretion, a termination of sustenance alimony payments in a modification proceeding should not be disturbed.

The parties to this action, Rita M. Blakemore, appellee herein, and Robert W. Blakemore, appellant herein, were married in 1955.

In April 1975, the appellant left the marital home and took up separate residence in Kent, Ohio.

The original divorce action was decided on August 29, 1977, and the appellee was granted a divorce on the grounds that the parties had lived apart for more than two years.The decree rendered provided for custody of the minor children with appellee, visitation rights, child support and sustenance alimony to the appellee in the amount of $500 per month, subject to certain conditions.Appellee was also awarded the marital residence located in Silver Lake, Ohio; an income-producing parking lot in downtown Akron; an automobile; and $5,000 in cash.The appellant was awarded the remaining properties.

Appellee filed a notice of appeal from the trial court's judgment.On March 29, 1978, the court of appeals held that the alimony award was insufficient and contrary to law, and ordered the appellant to pay appellee sustenance alimony at the rate of $800 per month for a period of thirty-six months.At the conclusion of the thirty-six month period, the sustenance alimony payments would revert back to $500 per month until appellee remarried, died, lived in concubinage, or the appellant died, or upon the expiration of ten years and one month from September 1, 1977.The appellate court also expressly vacated the trial court's provision for modification of sustenance alimony should appellee obtain gainful employment.

Shortly thereafter, appellee obtained employment in June 1978 with the First National Bank of Akron at $6,000 per year.She subsequently changed employers and began working at Akron City Hospital in December 1978 and was paid approximately $11,000 per year.

On September 30, 1980, appellant filed a motion with the trial court seeking the modification and/or termination of the sustenance alimony award due to a substantial change in circumstances.On March 20, 1981, the trial court granted appellant's motion and terminated appellee's sustenance alimony, noting that appellee's income exclusive of the alimony payments exceeded her needs by her own testimony.

Appellee appealed to the court of appeals.On October 14, 1981, the appellate court reversed the trial court and reinstated the sustenance alimony payments, and imposed a fifteen percent interest rate on the arrearages created by the reinstatement, and remanded the cause to the trial court for an award of attorney's fees to the appellee.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Calhoun, Waddell, Ufholz & Hunt and Howard L. Calhoun, Akron, for appellee.

Blakemore, Rosen & Norris Co., L.P.A., Bernard I. Rosen and James F. Burke, Jr., Akron, for appellant.

SWEENEY, Justice.

The leading case with respect to termination of sustenance alimony in Ohio, Wolfe v. Wolfe(1976), 46 Ohio St.2d 399[75 O.O.2d 474], stated at page 414, 350 N.E.2d 413:

"Any grant of 'alimony' for sustenance is necessarily co-extensive with the court's determination that it is needed and warranted.Such authentication and supervision is accomplished through the continuing jurisdiction of the court."

Then, in Cherry v. Cherry(1981), 66 Ohio St.2d 348, 421 N.E.2d 1293[20 O.O.3d 318], this court stated at page 355, 421 N.E.2d 1293:

" * * * A trial court must have discretion to do what is equitable upon the facts and circumstances of each case.

"Of course, a trial court's discretion, though broad, is not unlimited.A reviewing court may modify or reverse a property division, if it finds that the trial court abused its discretion in dividing the property as it did.Section 3(B), Article IV of the Ohio Constitution;App.R. 12."

The issue before us in this cause is whether the court of appeals was correct in reinstating the sustenance alimony payments terminated by the trial court.Stated differently, we must determine whether the trial court abused its discretion in terminating alimony payments to the appellee in the modification decision of March 20, 1981.

A trial court in any domestic relations action has broad discretion in fashioning an equitable division of marital property, Berish v. Berish(1982), 69 Ohio St.2d 318, 432 N.E.2d 183[23 O.O.3d 296]; and when appropriate, in awarding alimony based on need.Wolfe v. Wolfe, supra.

In the instant case, the court of appeals did not apply the proper standard of review in reversing the trial court's termination of sustenance alimony payments.The trial court's judgment cannot be disturbed on appeal absent a showing that the trial court abused its discretion.Koegel v. Koegel(1982), 69 Ohio St.2d 355, at 357, 432 N.E.2d 206[23 O.O.3d 320];Cherry v. Cherry, supra, 66 Ohio St.2d at 355, 421 N.E.2d 1293;Berish, supra, 69 Ohio St.2d at 319, 432 N.E.2d 183.See, also, Dennison v. Dennison(1956), 165 Ohio St. 146, 150, 134 N.E.2d 574[59 O.O. 210].

The term "abuse of discretion" was defined by this court in State v. Adams(1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144[16 O.O.3d 169]:

"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.Steiner v. Custer(1940), 137 Ohio St. 448[31 N.E.2d 855];Conner v. Conner(1959), 170 Ohio St. 85[162 N.E.2d 852];Chester Township v. Geauga Co. Budget Comm.(1976), 48 Ohio St.2d 372[358 N.E.2d 610] ."

Although Adams dealt with "abuse of discretion" in a criminal law context, our citation of Conner implies that the term has the same meaning when applied in a domestic relations context.

The appellate court in the instant case was incorrect in substituting its judgment for that of the trial court.Given the evidence in the record that was carefully reviewed by the trial judge, we cannot find that the decision to terminate sustenance alimony to appellee was either unreasonable, arbitrary or unconscionable.

The trial judge in the case sub judice found sufficient changed circumstances which he believed justified a termination of sustenance alimony payments, when he made his specific findings of fact and conclusions of law.In particular, with reference to the factors enumerated in R.C. 3105.18, ¹ the trial judge found that appellee had acquired employment at an annual salary of approximately $11,500 per year with fringe benefits such as medical insurance and a pension plan; that she had sold the marital home and obtained a profit which enabled her to purchase a new home free of mortgages or encumbrances that she was able to loan a friend $2,100; that she had at the time of the hearing, $47,000 in various bank accounts; and that she was netting a little in excess of $7,000 per year on rents from a parking lot that she received in the original property settlement.

Taking into account all of these factors, the trial judge held that "[appellee's] income exclusive of the alimony payments exceeds her needs by her own testimony."These changed circumstances stand in stark contrast to the situation the appellee confronted at the time of the divorce, when she was suffering from mental and emotional difficulties, was unemployed and was in need of alimony payments to at least meet her expenses.

In Wolfe, this court declined to set up a rule whereby post-divorce unchastity, standing alone, would be sufficient grounds to terminate sustenance alimony.By the same token, by holding that the trial judge did not abuse his discretion in terminating the sustenance...