Gullia v. Gullia

• Decision Date: 16 March 1994
• Docket Number: Nos. 60498,60335 and 61704,s. 60498
• Parties: GULLIA, Appellant and Cross-Appellee, v. GULLIA, Appellee and Cross-Appellant; Stauffer, Cross-Appellant. *
• Court: Ohio Court of Appeals

Page 653

93 Ohio App.3d 653

639 N.E.2d 822

GULLIA, Appellant and Cross-Appellee, v. GULLIA, Appellee and Cross-Appellant; Stauffer, Cross-Appellant. ^*

Nos. 60498, 60335 and 61704.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided March 16, 1994.

Fadle & Beyer, William D. Beyer, Steven D. Jones, and Roger L. Kleinman, Cleveland, for appellant Theodore A. Gullia, Jr.

Joseph G. Stafford, Cleveland, for appellee Marietta D. Gullia.

MATIA, Judge.

Plaintiff-appellant, Theodore A. Gullia, Jr., appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, which granted the parties a divorce. Appellant is contesting the trial court's division of marital property, award of alimony to the appellee, an award of attorney fees ordered to be paid by the appellant, a post-decree restraining order prohibiting appellant from transferring or encumbering certain property identified in the divorce decree, and a post-decree contempt order.

Defendant-appellee Marietta D. Gullia has filed a cross-appeal of the trial court's decision limiting her attorney fees award to $25,000. Appellee had been seeking in excess of $80,000 in attorney fees.

New-party defendant, cross-appellant Patricia A. Stauffer, appeals the trial court's decision which divested her of title to property designated in the divorce decree as the "Shaw Avenue property" and the "Westhaven property."

I. STATEMENT OF THE CASE

Appellant and appellee were married on October 9, 1957. Five children were born as issue of the marriage, all of whom were emancipated at the time of trial. The record reveals that the appellant is an attorney licensed to practice law in Ohio and a licensed pilot with connections in the aviation industry. During the majority of the marriage, appellee was primarily a homemaker. Toward the end of the marriage, appellee developed a business as a party planner.

In January 1984, appellant and appellee separated. At some point after the separation, appellant moved in with cross-appellant Patricia Stauffer. Stauffer had been employed by appellant as a legal secretary since 1977. During the course of their relationship, which can be characterized as both personal and professional, appellant and Stauffer became involved in numerous business dealings, including the acquisition of various properties. Two such properties, the Shaw Avenue property and the Westhaven property, form the basis of Stauffer's appeal. During this time period, appellant filed for bankruptcy relief from which he was discharged on September 6, 1984.

On July 16, 1987, appellant filed a complaint for divorce. Trial in the lower court began on April 4, 1990 and continued throughout that spring for thirty-three days. On July 20, 1990, the trial court issued its judgment entry, which provided in part:

"1. Appellee is awarded the marital property located on Harcourt Drive, Cleveland Heights, Ohio subject to the existing mortgage in the amount of $57,000.00 which appellee shall assume, agree to pay, and hold appellant harmless thereon.

"2. Appellee is awarded all household goods contained in the Harcourt Drive premises.

"3. Appellant is ordered to pay appellee as permanent alimony the sum of $2,500.00 per month until such time as she dies or remarries.

"4. Appellant is ordered to pay appellee the sum of $25,000.00 for her attorney fees, said sum representing the fair and reasonable value of legal services rendered.

"5. Cross-appellant Patricia Stauffer is ordered to convey to appellant and appellee all of her right, title and interest in the Shaw Avenue property, the trial court finding that the same has been held in trust for and on behalf of appellant and appellee as a marital asset.

"6. Cross-appellant Patricia Stauffer is ordered to transfer all of her right, title and interest in the Westhaven property to appellant, the trial court finding said property has been held in trust as a marital asset.

"7. The interest in the Shaw Avenue property is to be divided equally between appellant and appellee and one-half is awarded to appellee in the amount of $15,000.00; and her IRA in the amount of $2,200.00; that the total division of property awarded to appellee totals $200,200.00.

"8. Appellant is ordered to pay in full forthwith the real estate tax delinquency together with all interest and assessments which constitute a lien and/or amount due on the Harcourt property and the same shall constitute a lien on all real property to be conveyed to plaintiff under the terms of this decree.

"9. Appellant is awarded the Westhaven property along with assets totaling $100,100.00.

"10. The trial court finds that there is an arrearage in the amount of $18,900.00 for temporary alimony and an arrearage in the amount of $3,870.00 in child support, for a total arrearage of $22,770.00 due and owing appellee which appellant is hereby ordered to pay at a rate of $500.00 per month without interest until said arrearage is paid in full."

II. FIRST ASSIGNMENT OF ERROR

The appellant's first assignment of error provides:

"The trial court committed reversible error in issuing a lifetime alimony award without issuing findings regarding the parties' relative earning capacities and other statutory factors."

A. THE ISSUE RAISED: WHETHER THE TRIAL COURT INDICATED THE BASIS FOR ITS AWARD IN SUFFICIENT DETAIL

Appellant argues that the trial court failed to analyze the relevant factors set forth in R.C. 3105.18(B) in awarding appellee sustenance alimony of $30,000 per year for the rest of her life until such time as she dies or remarries. R.C. 3105.18(B) provides:

"(B) In determining whether alimony is necessary, and in determining the nature, amount, and manner of payment of alimony, the court shall consider all relevant factors, including, but not limited to, the following:

"(1) The relative earning abilities of the parties;

"(2) The ages, and the physical and emotional conditions of the parties;

"(3) The retirement benefits of the parties;

"(4) The expectancies and inheritances of the parties;

"(5) The duration of the marriage;

"(6) The extent to which it would be inappropriate for a party, because he will be custodian of a minor child of the marriage, to seek employment outside the home;

"(7) The standard of living of the parties established during the marriage;

"(8) The relative extent of education of the parties;

"(9) The relative assets and liabilities of the parties;

"(10) The property brought to the marriage by either party;

"(11) The contribution of a spouse as homemaker."

It is appellant's position that the trial court failed to adequately determine the relative earning capacity of the parties, neglected to make definite findings as to the relative assets and liabilities of the parties, and neglected to find the value of appellant's expectancy from his mother's estate.

This assignment of error is well taken.

B. THE STANDARD OF REVIEW APPLICABLE TO SUSTENANCE ALIMONY DETERMINATION

The Ohio Supreme Court held in Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 518 N.E.2d 1197, paragraph two of the syllabus:

"In allocating property between the parties to a divorce and in making an award of sustenance alimony, the trial court must indicate the basis for its award in sufficient detail to enable a reviewing court to determine that the award is fair, equitable and in accordance with law." (Emphasis added.)

Moreover, the Kaechele court stated:

"In making a sustenance alimony award, the trial court must consider all the factors listed in R.C. 3105.18(B) and not base its determination upon any one of those factors taken in isolation." Id. at paragraph one of the syllabus.

Therefore, the trial court must indicate the basis for its award in sufficient detail so the reviewing court can determine that the award is fair, equitable and in accordance with law.

C. THE TRIAL COURT FAILED TO INDICATE THE BASIS FOR ITS AWARD

A review of the trial court's judgment entry dated July 20, 1990 shows that the trial court did not adequately set forth the basis for its award of sustenance alimony in the amount of $30,000 per year for life until appellee remarries or dies. Accordingly, we remand the cause to the trial court for more specific findings of fact and conclusions of law.

III. SECOND ASSIGNMENT OF ERROR

The appellant's second assignment of error provides:

"The trial court abused its discretion and committed reversible error in granting wife lifetime alimony without reserving jurisdiction to modify such award."

A. THE ISSUE RAISED: WHETHER THE TRIAL COURT SHOULD HAVE RESERVED JURISDICTION TO MODIFY ITS AWARD OF LIFETIME ALIMONY

Appellant argues that the trial court abused its discretion by failing to reserve jurisdiction to modify an indefinite award of alimony. For the following reasons, appellant's second assignment of error is well taken.

B. THE STANDARD OF REVIEW APPLICABLE TO RESERVING JURISDICTION

Prior to the amendment of R.C. 3105.18 in 1986, a trial court's continuing jurisdiction to modify an indefinite sustenance alimony award was implied in the parties' divorce decree. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 75 O.O.2d 474, 350 N.E.2d 413. In 1986, the Ohio General Assembly amended R.C. 3105.18, requiring the domestic relations court to specifically reserve jurisdiction in order to subsequently modify a sustenance alimony award. R.C. 3105.18(D)(1). Since the 1986 amendment, it has been held that a trial court abuses its discretion by failing to reserve jurisdiction to modify an indefinite award of alimony. Nori v. Nori (1989), 58 Ohio App.3d 69, 568 N.E.2d 730; Shannon v. Shannon (Jan. 28, 1993), Cuyahoga App. No. 61714, unreported, 1993 WL 19572.

C. TRIAL COURT'S FAILURE TO RESERVE JURISDICTION CONSTITUTES AN ABUSE OF DISCRETION

Consistent with the foregoing, we conclude that the trial court abused its discretion by failing to reserve jurisdiction to modify an indefinite award of sustenance alimony in the instant case...