Kunkle v. Kunkle

• Citation: 554 N.E.2d 83,51 Ohio St.3d 64
• Decision Date: 09 May 1990
• Docket Number: No. 89-140,89-140
• Parties: KUNKLE, Appellee, v. KUNKLE, Appellant.
• Court: United States State Supreme Court of Ohio

Page 64

51 Ohio St.3d 64

554 N.E.2d 83

KUNKLE, Appellee, v. KUNKLE, Appellant.

No. 89-140.

Supreme Court of Ohio.

Submitted Feb. 6, 1990.

Decided May 9, 1990.

Syllabus by the Court

1. Except in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has the resources, ability and potential to be self-supporting, an award of sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties' rights and responsibilities.

2. Absent an agreement between payor and payee spouses, it is improper to include in an award of sustenance alimony a clause requiring the payor to pay alimony based on a fixed percentage of the payor's income, gross or otherwise, when the award is in the form of a penalty or is not based on the payee's need.

3. An award of sustenance alimony must not exceed an amount which is reasonable.

4. Sustenance alimony awarded in a specific amount for a definite period of time, whether encompassed in an agreement between the payor and payee or decreed by court order, is chargeable against the payor's estate to the extent such award is not fully paid at the death of the payor.

5. An award of sustenance alimony for a fixed period of time and for a definite amount is not rendered indefinite even though the award is made subject to the payee's death, remarriage or cohabitation.

Appellant, Robert L. Kunkle, and appellee, Nancy R. Kunkle, were married on November 4, 1967, while both were attending college. At the time of the marriage, appellee was pregnant with their eldest child, and she discontinued her education. During the marriage, three children were born as issue. Robert was born on April 20, 1968, Wendy, on November 26, 1970, and Jeffrey, on October 9, 1978. At the time of trial, Robert was seventeen, Wendy, fourteen, and Jeffrey, six.

Appellant continued his education and obtained a Bachelor of Science degree. Appellant's college expenses were paid by his parents. At the request of appellant, and during the marriage, appellee never worked outside the home.

After graduation, appellant began his career with Dunn & Bradstreet and later, in 1972, he became employed by McDonald & Company as a stockbroker. In 1974, appellant earned $14,845.41. Appellant's employment status with McDonald & Company eventually became that of partner, and subsequently that of employee when the partnership became a corporation.

As an employee of McDonald & Company, appellant was paid on a commission basis. Appellant's commissions have increased considerably over the years. In 1984, appellant earned $79,314. In addition, the parties accumulated, during the marriage, net assets of $380,724.

Prior to the divorce, appellant began a relationship with another woman. Appellant informed appellee he was in love with a friend of appellee. Thereafter, on February 14, 1984, appellant left the marital home. A month later, March 14, 1984, appellee filed an action for divorce alleging that appellant was guilty of extreme cruelty. Subsequently, appellee also commenced a relationship outside the marriage. On January 28, 1985, appellant counterclaimed against appellee, alleging gross neglect of duty, extreme cruelty and adultery.

This matter came to trial in March 1985. On January 31, 1986, the trial court dismissed appellant's counterclaim and rendered its decision granting appellee a divorce. Also, on January 31, 1986, the trial court awarded appellee custody and support of the minor children. Appellant was ordered to pay $100 per week for child support, to maintain hospitalization and medical insurance and to pay all medical-related expenses for the children. In addition, each party was awarded an equal division of the marital assets, each share approximating $190,000. In the January 31 entry ("initial entry"), the court also ordered appellant to pay sustenance alimony based on the following conditions:

"The defendant, Robert L. Kunkle, shall pay to the plaintiff, Nancy R. Kunkle, as and for support alimony a sum equal to thirty three and one third percent (33 1/3%) of the payor's gross earned income which as used herein shall be that income received annually as an employee or through self-employment less payor's FICA payments. * * * Said payments shall continue during the life of the payee, Nancy R. Kunkle, so long as she does not remarry or cohabit with a person of the opposite sex for more than six (6) months continuously with the happening of either of the latter subjecting said award to modification by the Court. Payor's obligation to pay payee pursuant to the terms of this paragraph will end and payor will be released from the obligation of payment after the earliest of the death of either party and in no event shall any such payments, or any substitutions therefore [sic ], in any form be made after the payee's death. [Emphasis added]

"

" * * * [T]hat as to those matters involving the separate maintenance and support of the plaintiff, Nancy R. Kunkle, that this court maintain continuing jurisdiction."

Subsequently, post-trial motions were filed by both parties. Appellant sought a new trial on the issue of alimony being fixed as a percentage of gross earnings. Appellee sought a new trial on the issues of child support, alimony, property division, and the failure of the trial court to secure the ordered alimony payments with life insurance.

In response to these motions, the trial court filed four additional entries. Of these entries, all filed on May 12, 1986, only three are pertinent to this appeal.

By way of entry ("second entry"), the court denied appellant's motion for a new trial. In doing so, the court found that awarding sustenance alimony on a percentage of income basis was not contrary to law.

In yet another entry ("third entry"), the court denied appellant's motion for clarification of certain language found in the initial entry concerning when the payment of alimony was to commence. This third entry also contained the trial court's response to appellee's motion for clarification of the provision in the initial entry that provided for alimony to be paid appellee during her lifetime and for " * * * so long as she does not remarry or cohabit * * * with the happening of either of the latter subjecting said award to modification by the court." The trial court, in the initial entry, had also made the alimony award subject to the " * * * continuing jurisdiction" of the court.

By way of this third entry, the trial court added the words, following the verbiage subjecting the alimony award to modification, "upon hearing as to the facts that then exist including whether or not plaintiff is maintaining a home for any of the children."

In a fourth entry ("fourth entry"), the trial court responded to appellee's motion for a new trial. While the trial court made no specific ruling on the motion, the court did, in effect, overrule the motion. In doing so, however, the trial court made significant changes to the initial entry of the court. The changes made by the fourth entry involve the ruling by the trial court that the awarded sustenance alimony was to be not less than $2,000 per month and was to be chargeable, upon appellant's death, to appellant's estate.

In so ruling, the trial court deleted from the initial entry the order that alimony payments to appellee would cease upon the death of appellant and substituted therefor the following language:

"Payor's obligation to pay payee pursuant to the terms of this paragraph will end and the payor will be released from the obligation of payment after the payee's death. In the event of the payor's death, the sustenance alimony shall be a charge against defendant's estate after his death and to further secure payment of the same, the plaintiff shall be made a beneficiary of the term insurance provided through his employer as her interest may appear. All payments hereunder shall be made in cash and the amount payable monthly shall be no less than Two Thousand Dollars ($2,000.00)." (Emphasis added.)

In addition, in addressing appellant's motion for a new trial in the second entry, the court seemingly abandoned its prior position concerning modification and ordered:

"The parties having placed this controversey [sic ] squarely in the trial court's hands for an equitable solution, the court is satisified [sic ], based on the potential fluctuation in the defendant's income, the percentage arrived at by the court is proper in this case. The Court further finds that as long as the plaintiff continues to be the homemaker for her children as their custodian, said award should continue unmodified * * *." (Emphasis added.)

From the trial court's final orders, appellant filed a timely appeal. Appellant set forth four assignments of error. The court of appeals overruled all assignments of error and affirmed the judgment of the trial court.

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

Drake, Phillips, Kuenzli, Clark & Weasel and William E. Clark, Findlay, for appellee.

Jude T. Aubry Co., L.P.A., and Jude T. Aubry, Toledo, for appellant.

DOUGLAS, Justice.

The issues before this court focus on the award and payment of sustenance alimony. Did the trial court abuse its discretion in not terminating sustenance alimony payments on a date certain? May a trial court, pursuant to R.C. 3105.18(A) and (B), award sustenance alimony based on a fixed percentage of the payor's gross annual income less FICA? When may a trial court make sustenance alimony payments chargeable against the payor's estate?

In Ohio, alimony consists of two components: a division of marital assets and liabilities, and periodic payments for sustenance and support. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 95, 518 N.E.2d 1197,...