Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Beckie J. Sutmoller v. Nico Sutmoller

October 24, 2011

BECKIE J. SUTMOLLER, : PLAINTIFF-APPELLEE,
v.
NICO SUTMOLLER, DEFENDANT-APPELLANT.



APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION

The opinion of the court was delivered by: Hendrickson, P.J.

Cite as

Sutmoller v. Sutmoller,

OPINION

{¶1} Defendant-appellant, Nico Sutmoller, appeals the decision of the Warren County Court of Common Pleas, Domestic Relations Division, ordering him to pay spousal support and to secure the support obligation by maintaining a life insurance policy payable to plaintiff-appellee, Beckie J. Sutmoller. For the reasons discussed below, we reverse the trial court's decision.

{¶2} The parties were married on March 21, 1983. On February 4, 2011, the parties were granted a divorce. In its final judgment and decree of divorce, the trial court ordered appellant to pay appellee spousal support in "the sum of $1,500.00 per month, plus 40% of any gross commissions, for a period 9½ years, or upon the death of either party or [appellee's] remarriage or her cohabitation with an unrelated adult in a relationship similar to marriage, whichever event occurs earlier." The court further ordered appellant to secure the spousal support obligation by "maintain[ing] $100,000.00 of life insurance payable to [appellee] through his employment." Appellant timely appealed, alleging two assignments of error.

{¶3} Assignment of Error No. 1:

{¶4} "THE TRIAL [COURT] COMMITTED REVERSIBLE ERROR IN THE AMOUNT AND MANNER OF SPOUSAL SUPPORT IT GRANTED TO APPELLEE/WIFE."

{¶5} Assignment of Error No. 2:

{¶6} "THE TRIAL [COURT] COMMITTED REVERSIBLE ERROR IN ORDERING HUSBAND TO MAINTAIN LIFE INSURANCE PAYABLE TO WIFE TO SECURE SPOUSAL SUPPORT."

{¶7} In his first assignment of error, appellant argues that the trial court erred by failing to place a limit or maximum dollar amount on that which appellee is entitled to receive from his yearly gross commissions. Appellant contends that the trial court abused its discretion in ordering him to pay 40% of his gross commissions to appellee, in addition to the $1,500 a month, as the court's order does not take into consideration his ability to pay or appellee's need. Because the award of spousal support is not based on appellee's need, appellant maintains that the court's order requiring him to pay a fixed percentage of his gross commissions acts as a penalty.

{¶8} "[A] trial court is given wide latitude in determining the amount of spousal support to be awarded, as long as the trial court properly considers the statutory factors of R.C. 3105.18(C)." Guenther v. Guenther, Butler App. No. CA2001-04-072, 2002-Ohio-376, at 4-5, citing Schneider v. Schneider (1996), 110 Ohio App.3d 487, 494. "A reviewing court cannot substitute its judgment for that of the trial court unless, considering the totality of the circumstances, the trial court abused its discretion." Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67. An abuse of discretion constitutes more than an error of law or judgment; it requires a finding that the trial court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{¶9} An award for spousal support must be appropriate and reasonable. R.C. 3105.18. "'Need' is an essential element in determining whether spousal support is 'appropriate and reasonable.'" Carnahan v. Carnahan (1997), 118 Ohio App.3d 393, 399. "When * * * spousal support is not limited to the payee's needs, the award has the effect of punishing the payer and rewarding the payee. * * * Each of the factors in the present statute, R.C. 3105.18(C)(1)(a)-(n), is related, directly, or indirectly, either to the obligee spouse's need for sustenance or the obligor spouse's ability to pay." (Internal citations omitted; internal quotation marks omitted.) Id. at 399-400.

{¶10} In Kunkle v. Kunkle, 51 Ohio St.3d at 71, the Supreme Court held that "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." In Kunkle, the trial court ordered appellant-husband to pay appellee-wife support alimony in the sum of 33⅓% of husband's gross earned income, with a minimum monthly support award of $2,000. Id. at 69. Because the trial court fashioned the support award in a manner that would fluctuate monthly, the Supreme Court held that the trial court was "merely * * * guessing what the needs and abilities of appellee and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.