St. Clair v. St. Clair

• Decision Date: 25 May 1983
• Citation: 9 Ohio App.3d 195,459 N.E.2d 243
• Parties: , 9 O.B.R. 306 ST. CLAIR, Appellant, v. ST. CLAIR, Appellee.
• Court: Ohio Court of Appeals

Page 195

9 Ohio App.3d 195

459 N.E.2d 243, 9 O.B.R. 306

ST. CLAIR, Appellant, v. ST. CLAIR, Appellee.

Court of Appeals of Ohio, Ninth District, Lorain County.

May 25, 1983.

Syllabus by the Court

Support alimony is distinguishable from property alimony as follows:

a. Support alimony is awarded in response to the husband's duty to provide sustenance, as contrasted to the wife's right to a portion of the marital property;

b. Support alimony is indefinite in amount, as contrasted with the definitive nature of a property settlement; and

c. Support alimony is an award independent of any other award, including a property division. (Wolfe v. Wolfe, 46 Ohio St.2d 399, 350 N.E.2d 413 , followed.)

Arnold S. Levin, Lorain, for appellant.

Allen Spike, Elyria, for appellee.

GEORGE, Judge.

The plaintiff, Betty Lou St. Clair, appeals from an order of the court of common pleas made pursuant to various custody, alimony and support motions.

The parties were divorced on July 18, 1975. As a part of the divorce decree, the court ordered the defendant, Jack Lee St. Clair, to pay $75 per week as alimony to the plaintiff. Furthermore, custody of the parties' five children was granted to the plaintiff with the defendant being ordered to pay $125 per week as child support.

On March 8, 1982, the defendant moved for a termination of the alimony payments and a partial termination of the child support payments. On April 19, 1982, the plaintiff filed a motion with the court for the payment of delinquent alimony payments amounting to $2,400 and the payment of allegedly delinquent child support payments. The plaintiff further requested an increase of both child support and alimony. Finally, the plaintiff's motion requested that the defendant be found in contempt for failure to pay alimony. On May 6, 1982, the defendant filed a motion for custody of two of the five children.

Prior to the motion hearing, the plaintiff requested that the defendant produce certain documents pertaining to his financial condition. The defendant moved the court for a protective order after which the plaintiff requested an order to compel discovery. The trial court never ruled on these two motions.

The remaining motions were heard on September 13, 1982, and the court rendered its decision with findings of fact and conclusions of law on October 27, 1982. From this order the plaintiff has appealed.

"1. The Court failed to make findings of fact and conclusions of law as requested by Appellant, as required by Civil Rule 52.

" * * *

"4. The Court erred in failing to find defendant guilty of contempt of the order of the Court for failure to pay alimony as ordered by the July 18, 1975 decree.

"5. The Court failed to grant plaintiff's Motion to Compel Defendant to Produce Documents described in Appellant's Request for Production of Documents, pertaining to defendant's income and wealth.

"6. The Court erred in concluding that child support arrearage as shown on the records of the Bureau of Support are [sic ] ordered satisfied and paid.

"7. The Court abused its discretion and erred in failing to award attorney fees to plaintiff.

"8. The Court erred in refusing to admit into evidence, and take judicial notice of, U.S. Government publications of Consumer Price Index."

These assignments of error are decided together as they all rest upon the failure of the plaintiff to provide this court with a transcript of the proceedings of the September 13, 1982 hearing.

With regard to the first assignment of error, the plaintiff argues that the trial court erred in failing to make findings of fact on certain issues as she requested. The responsibility of a court in a bench trial, upon proper request, is to issue findings of fact concerning all of the ultimate facts. Civ.R. 52; Freeman v. Westland Builders, Inc. (1981), 2 Ohio App.3d 212, 441 N.E.2d 283. Ultimate facts are those facts adduced by the factfinder from the evidentiary facts which will determine the action. In order to reverse for a failure to find facts, the reviewing court must find that such failure was prejudicial. Here the court's failure to answer questions propounded to it is not demonstrated to be erroneous.

The fourth, seventh and eighth assignments of error all deal with matters within the discretion of the trial court. A finding of an abuse of discretion depends largely on the evidence presented in the record.

In her fifth assignment of error, the plaintiff complains that the court did not rule on her motion to compel discovery. The record discloses no objection by the plaintiff to the trial court's proceeding to a hearing on the merits.

It is essential that a party claiming error demonstrate the error in the record on appeal. 4 Ohio Jurisprudence 3d 518, Appellate Review, Section 248. In the absence of a transcript of the proceedings none of the errors assigned can be demonstrated to the reviewing court. Therefore, Assignments of Error Nos. 1, 4, 5, 6, 7 and 8 are overruled.

Assignment of Error No. 2

"The Court erred in concluding that it is without authority to increase an award of alimony payable in installments from future earnings or property acquisition of a party as the July 18, 1975 award."

In its journal entry the trial court concluded that it was without authority to increase the alimony awarded in July 1975. This judgment is erroneous.

In Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 350 N.E.2d 413 , the court observed that the authority of a trial court to modify an alimony award was established as early as 1885 in Olney v. Watts (1885), 43 Ohio St. 499, 3 N.E. 354. In that case, the court stated that a distinction might arise where the alimony award is in the nature of a permanent division of the property of the parties rather than an award for the wife's support. Id.

The court in Wolfe continued this support alimony and property alimony distinction. The court noted a general absence of authority to modify a division of property. Wolfe, supra, 46 Ohio St.2d at 416, 417, fn. 30, 350 N.E.2d 413. However, where the purpose of the alimony award...