Cross v. Cross
| Citation | 54 N.E.3d 756 |
| Decision Date | 17 December 2015 |
| Docket Number | No. 102627.,102627. |
| Parties | Johannah W. CROSS, Plaintiff–Appellant v. Douglas W. CROSS, Defendant–Appellee. |
| Court | United States Court of Appeals (Ohio) |
Robert E. Epstein, Beachwood, OH, Attorney for Appellant.
Sarah Gabinet, Justine L. Konicki, Kohrman, Jackson & Krantz, P.L.L., Cleveland, OH, Attorneys for Appellee.
Adam J. Thurman, Schoonover, Rosenthal, Thurman & Daray, L.L.C., Cleveland, OH, Guardian Ad Litem.
Before: STEWART, P.J., BOYLE, J., and S. GALLAGHER, J.
MELODY J. STEWART
, P.J.
{¶ 1} This is an appeal from a divorce decree that terminated the nearly 27–year marriage of plaintiff-appellant Johannah Cross and defendant-appellee Douglas Cross. The 12 assignments of error1 collectively contest the division of marital property, allocation of marital debt, spousal support, child support, and guardian ad litem fees. We find no error and affirm.
{¶ 2} The court ordered Douglas to pay spousal support to Johannah in the amount of $1,250 per month for 96 months. In her first assignment of error, Johannah complains that the court abused its discretion in both the amount and duration of spousal support. She argues that the court erred when calculating the parties' income because it failed to account for the disparity in income and earning ability between the parties.
allows the court to award spousal support provided it is “appropriate and reasonable.” When deciding whether spousal support is appropriate and reasonable, the court must consider the factors set forth in R.C. 3105.18(C)(1). There is no “mathematical formula” for determining what amount of spousal support should be ordered, Kaechele v. Kaechele, 35 Ohio St.3d 93, 96, 518 N.E.2d 1197 (1988), so the court has broad discretion to determine the amount and the duration. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990). If some competent, credible evidence supports the court's order, that order will not be an abuse of the court's discretion. Middendorf v. Middendorf, 82 Ohio St.3d 397, 401, 696 N.E.2d 575 (1998).
{¶ 4} The matter was tried to the court, which entered findings relative to spousal support based on the factors in R.C. 3105.18
. At the time of divorce, Douglas was 55 years old, had a college degree, and earned $172,900 as a sales manager for a media company. Johannah was 47 years old, had bachelor's and master's degrees (both earned during the marriage), and earned $55,308 as a teacher and an additional $9,064 as a tutor. The court found that the parties enjoyed an “upper middle class” standard of living and that neither party's earning ability would suffer in the future.
{¶ 5} Johannah first maintains that the court erred in calculating Douglas's income because it failed to take into account bonuses. She claims that the evidence showed that Douglas received bonuses of up to $68,000 in the years prior to the divorce and that the court should have factored these bonuses into its calculation of Douglas's income.
{¶ 6} The evidence showed that Douglas's bonuses were sporadic because they were based on his company's yearly performance. In the nine years leading up to the divorce decree, Douglas received four bonuses ranging from $29,736 to $68,000.
{¶ 7} For purposes of determining spousal support, R.C. 3105.18(C)(1)(a)
orders the court to consider “[t]he income of the parties, from all sources * * *.” We have held that R.C. 3105.18(C)(1)(a) is substantively different than R.C. 3119.05(D), which states that for purposes of determining child support the court must include income from bonuses. Thus, the court does not abuse its discretion simply by refusing to include bonuses in its calculation of income for purposes of spousal support. MacDonald v. MacDonald, 8th Dist. Cuyahoga No. 96099, 2011-Ohio-5389, 2011 WL 4978986, ¶ 32.
{¶ 8} The court did not specifically mention these bonuses in its calculation, but it did order that Johannah receive 50 percent of the net after-tax amount of any bonus that Douglas might receive in 2015 for tax year 2014. Given the irregularity with which Douglas received any bonuses and the variability of the amounts of the bonuses, the court decided to treat any potential bonus not as income, but as a marital asset instead of income. This was consistent with how the parties treated past bonuses (a point of contention we will consider in greater depth later). For purposes of Johannah's argument here, we cannot conclude that the court abused its discretion by refusing to average out Douglas's prior bonuses and consider them income.
{¶ 9} In addition to Johannah's salary as a teacher, she earned $9,064 in 2013 as a tutor. Johannah testified that she did not expect to earn as much by tutoring in the future, so the court abused its discretion by including that amount as part of her gross income. We disagree. While Douglas had no control over his bonus—it was awarded at the discretion of his employer and was not based on personal performance—Johannah had much more control over her tutoring income. She said that, moving forward she “expects” to earn less money tutoring, but did not explain why this was so. With the absence of any testimony showing a reasonable basis for a reduction in her tutoring income, the court did not abuse its discretion by imputing that income to her.
{¶ 10} Johannah next argues that the court abused its discretion by awarding her only $1,250 per month for spousal support for 96 months. She maintains that this figure is “unreasonably low” given the disparity in income and earning ability between the parties and that the length of support ordered is inconsistent with a marriage that lasted nearly 27 years.
does not require a spousal support award to provide the parties with an equal standard of living.” Saks v. Riga, 8th Dist. Cuyahoga No. 101091, 2014-Ohio-4930, 2014 WL 5762843, ¶ 77. Rather, an award of spousal support must be designed to allow a party to maintain “a reasonable standard of living in light of the standard maintained during the marriage.” Howell v. Howell, 2d Dist. Clark No. 2002 CA 60, 2003-Ohio-4842, 2003 WL 22110309, ¶ 25.
{¶ 12} The court determined that Johannah could earn approximately $64,000 per year by teaching and tutoring. When spousal support of $15,000 ($1,250 x 12 months) is added to that amount, Johannah will have income of nearly $80,000 (exclusive of any child support she receives). While this amount may not allow Johannah to enjoy the “upper middle class standard of living” she enjoyed during the marriage, it must be noted that the parties achieved that standard of living by accruing a significant amount of debt. Johannah could not expect the court to continue the cycle of debt in order to sustain a prior standard of living.
{¶ 13} Johannah's argument that the 96–month duration of spousal support is too short rests solely on the length of the marriage. While the duration of the marriage was a factor that could weigh in favor of a longer period of spousal support, the court may have considered as a countervailing factor that Johannah had, by the time of the divorce, firmly established a career as a teacher. Johannah could independently support herself, so the court could rationally conclude that the length of spousal support was reasonable and appropriate under the circumstances.
{¶ 14} In addition, the court was aware that Douglas was eight years older than Johannah and that the 96–month period of spousal support would be terminated when Douglas reached 64 years of age, or the threshold of retirement. Mlakar v. Mlakar, 8th Dist. Cuyahoga No. 98194, 2013-Ohio-100, 2013 WL 177439, ¶ 24
. In addition, Johannah makes no argument that she will suffer substantial financial hardship upon the termination of spousal support. We cannot say that the court abused its discretion by limiting spousal support to 96 months.
{¶ 15} In her second assignment of error, Johannah complains that the court erred by refusing to find that Douglas engaged in financial misconduct by misappropriating marital funds to support the activities of the parties' children. She argues that as a consequence of this misconduct, the court should have ordered a distributive award of marital property to her.
. We have said that “financial misconduct” exists if a spouse engages in “wrongdoing” or “profit[s] from the misconduct or intentionally defeat[s] the other spouse's distribution of marital assets.” Bostick v. Bostick, 8th Dist. Cuyahoga No. 90711, 2008-Ohio-5119, 2008 WL 4434986, ¶ 23. The complaining spouse has the burden of establishing financial misconduct. Hammond v. Brown, 8th Dist. Cuyahoga No. 67268, 1995 WL 546903 (Sept. 14, 1995).
{¶ 17} Johannah argued that Douglas engaged in financial misconduct by using bonuses he received from his employer to support a go-kart racing hobby that Douglas enjoyed along with the parties' two children and not for any agreed upon marital purpose. While the court did find that Douglas so used the bonus money, the court pointedly found that Douglas “did not personally profit from these funds,” but instead used them to support “his children and their extracurricular activities.” That finding was not an abuse of the court's discretion.
{¶ 18} This brings us to a broader point raised by Johannah: that Douglas may have mismanaged marital finances by being overindulgent with the...
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