Eve Abernethy v. Robert H. Abernethy
| Decision Date | 15 August 2002 |
| Docket Number | 80406,02-LW-3214 |
| Parties | EVE ABERNETHY, Plaintiff-Appellee v. ROBERT H. ABERNETHY, Defendant-Appellant |
| Court | Ohio Court of Appeals |
Civil appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-244420
For Plaintiff-Appellee: JEROME S. BERKELEY, Attorney at Law, 3229 Fairmount Boulevard, Cleveland Heights, Ohio 44118
For Defendant-Appellant: JOSEPH G. STAFFORD, KENNETH J. LEWIS Attorneys at Law, 380 Lakeside Place, 323 Lakeside Avenue West, Cleveland, Ohio 44113
{¶1}Robert H. Abernethy appeals from a judgment of the domestic relations division of the common pleas court granting Eve Abernethy's complaint for divorce, setting the duration of marriage from 1977 to January 2000 and dividing the marital property accordingly, ordering him to pay $1530/month in spousal support, and ordering him to contribute $10,000 toward Eve's attorney fees.
{¶2}On appeal, Robert argues that the court erred in its findings regarding the duration of marriage for the purposes of dividing property, urging that it should have found the actual date of marriage, August 28, 1983, as the commencement date and the date of separation, May 15, 1994, as the de facto termination date; consequently, he claims the court erred in finding that assets he obtained after they had separated, but before trial, constituted marital property. He further argues that the court erred in its award of spousal support and attorney fees.
{¶3}After review of the record, we have concluded that the trial court properly exercised its property division and its award of spousal support. However, the court abused its discretion in awarding attorney fees. As such, we affirm the judgment of the trial court, but reverse the award of attorney fees, and remand this matter for further proceedings on that issue.
{¶4}Robert and Eve met in 1977 and, although married to other people at the time, they began a relationship. On September 23, 1977, Robert moved into Eve's home. Eve divorced her fourth husband, Clifford Peer, in March 1979. Robert divorced his first wife, Kathleen Abernethy, on February 10, 1982.
{¶5}In December 1980, they purchased a home in Berea, Ohio, as "Robert H. Abernethy and Eve R. Abernethy, Husband and Wife." They also maintained a joint bank account at Union Commerce Bank, and filed a joint tax return during their cohabitation.
{¶6}Then, on August 28, 1983, Robert and Eve married; no children were born as issue to this marriage. After almost eleven years of marriage, on May 15, 1994, Robert and Eve separated.
{¶7}On December 13, 1995, Eve filed a complaint for divorce in domestic relations court. After protracted pretrial litigation, trial of this matter commenced January 5, 2000, before a domestic court magistrate.
{¶8}Approximately a year later, on January 23, 2001, the magistrate issued her decision; subsequently, both sides filed objections to the magistrate's decision. On October 4, 2001, the court overruled the objections and adopted the magistrate's decision in its entirety, granted the parties a divorce, set the duration of marriage from 1977 to January 2000, divided their property, awarded Eve spousal support in the amount of $1530/month, and ordered Robert to contribute $10,000 toward Eve's attorney fees.
{¶9}Robert now appeals, raising four assignments of error for our review. The first and second state:
{¶10}"THE TRIAL COURT IMPROPERLY DETERMINED THE COMMENCEMENT DATE AND TERMINATION DATE OF THE PARTIES' MARRIAGE.
{¶11}"THE TRIAL COURT ERRED IN ITS DIVISION OF PROPERTY PURSUANT TO OHIO REVISED CODE SECTION 3105.171."
{¶12}Robert argues the trial court erred in selecting 1977, when the parties started living together, as a de facto date for the commencement of marriage, and further erred in using the date of the final hearing, January of 2000, as termination date for the duration of marriage for the purposes of dividing property. He urges that the court should have selected the actual date of marriage, August 28, 1983, as the commencement date and should have selected their separation date, May 15, 1994, as a de facto termination date. He further argues that, because the court used erroneous dates, it abused its discretion in finding property acquired after their separation in 1994 to be marital property.
{¶13}Eve counters that the trial court properly exercised its discretion in selecting 1977 as a de facto commencement date and in selecting January of 2000 as the termination date based on R.C. 3105.171(A)(2) and the facts of this case.
{¶14}R.C. 3105.171(A)(2) sets forth the method for determining the duration of marriage for the purposes of dividing property. That statute provides:
{¶15}"(2) 'During the marriage' means whichever of the following is applicable:
{¶16}"(a) Except as provided in division (A)(2)(b) of this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation;
{¶17} (Emphasis added.)
{¶18}Under subsection (a), the date of the marriage is presumed to be the commencement date for the marriage and the date of the final hearing is presumed to be the termination date. However, subsection (b) gives the trial court discretion to select de facto dates when equitable. As we stated in Glick v. Glick (1999), 133 Ohio App.3d 821, 828, 729 N.E.2d 1244:
{¶19}
{¶20}Robert argues the trial court erred in selecting 1977 as a de facto date for the commencement of marriage, noting that both he and Eve were married to other people at the time, Robert to Kathleen Abernethy until February 10, 1982, and Eve to Clifford Peer until March 1979, and that the actual date of marriage is August 28, 1983.
{¶21}The court stressed the following facts in finding that using the actual marriage date would be inequitable: Robert and Eve started living together in 1977; they purchased a home on Runn Street in Berea in December of 1980 as "Robert H. Abernethy and Eve R. Abernethy, Husband and Wife"; they maintained a joint bank account at Union Commerce Bank in 1980; and they filed a joint federal tax return for 1979 as husband and wife.
{¶22}Based on these circumstances, the trial court determined that using 1977 as the commencement date of the marriage for purposes of division of property would be more equitable than using the actual date of marriage, concluding:
{¶23}"The Magistrate concludes it would be inequitable to use the date of the parties' marriage ceremony as the commencement date of the marriage because the parties lived together prior to the marriage ceremony for approximately 6 years. During that time they established and maintained an economic partnership similar to marriage.
{¶24}"* * * [T]his court has concluded that for the purposes of determining the term of the marriage, it is equitable to use the date that the parties started functioning as Husband and Wife, both socially and economically."
{¶25}Based on the evidence presented at trial, however, we have concluded that the trial court abused its discretion in this regard. Simply put, it is not equitable to commence this marital relationship while the parties were married to other people. We have therefore determined that the court should have selected August 28, 1983, as the commencement date of the marriage, and we modify the judgment accordingly; nevertheless, this determination has no impact on the division of property.
{¶26}Robert also claims that the trial court erred using the date of the final hearing, January of 2000, as termination date for the duration of marriage for the purposes of dividing property. He urges that the court should have instead selected their separation date, May 15, 1994. He further argues that the selection of the termination date is crucial in this case, because he acquired several assets after May 15, 1994, namely a $17,600 Dean Witter IRA account and $3,500 from the sale of his interest in Z-Men Corporation, and if we determine the separation date to be the de facto termination date, those assets would become his separate property pursuant to R.C. 3105.171(A)(6)(iv); instead, by selecting January of 2000 as the termination date, the trial court found those assets obtained after the separation date to be marital property.
{¶27}"In divorce cases, we presume the date of the final hearing is the appropriate termination date of the marriage unless the court, in its discretion, uses a de facto termination." Badovick v. Badovick (1998), 128 Ohio App.3d 18, 713 N.E.2d 1066, citing ...
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