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Tracy L. Cornelius v. Allen F. Cornelius

December 14, 2012

TRACY L. CORNELIUS, PLAINTIFF-APPELLEE,
v.
ALLEN F. CORNELIUS, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: William H. Harsha, Judge

Cite as

Cornelius v. Cornelius,

DECISION AND JUDGMENT ENTRY

{¶1} Allen Cornelius appeals from the trial court's judgment in this contested divorce action. Mr. Cornelius contends that the trial court abused its discretion when it selected the de facto termination date of the marriage. He claims the parties made a bilateral decision to end the marriage in 2008, two years earlier than the date the court chose. However, the court was free to believe Tracy Cornelius' testimony that she did not give up on the marriage until the end of 2010, particularly in light of evidence of Mr. Cornelius' continued participation in the marriage after 2008. Therefore, the trial court's selection of the termination date was not unreasonable, arbitrary, or unconscionable.

{¶2} Next, Mr. Cornelius claims the trial court committed plain error when it ordered him to make Ms. Cornelius the beneficiary of a life insurance policy to the extent of his spousal support obligation. He argues that this provision implicitly requires that he pay support after his death, in violation of R.C. 3105.18(B) and in contradiction of the court's explicit order that support would terminate on the death of either party.

However, we interpret the insurance provision as an order to secure payment of any arrearage that might exist at the time of Mr. Cornelius' death, not as a continuing support provision. And because Mr. Cornelius failed to establish that a trial court cannot order a payor spouse to use life insurance to secure a potential future arrearage, we conclude no plain error occurred.

{¶3} Mr. Cornelius also complains that the court abused its discretion when it ordered him to pay Ms. Cornelius $3,000 per month in spousal support, especially in light of his other financial obligations under the divorce decree. However, Mr. Cornelius earns in excess of $100,000 per year while Ms. Cornelius was a homemaker for the vast majority of the 23 year marriage. Moreover, she takes medication that impacts her ability to obtain above minimum wage employment. Mr. Cornelius' other obligations under the decree are short-term, and he failed to demonstrate that the award is unreasonably high while those obligations remain outstanding. Finally, many of the R.C. 3105.18(C)(1) factors support the award. Therefore, the court did not act unreasonably, arbitrarily, or unconscionably when it determined the amount of the award.

{¶4} Finally, Mr. Cornelius argues that the court committed plain error when it awarded Ms. Cornelius spousal support for an indefinite period of time. However, the court's implicit finding that Ms. Cornelius lacks the ability, potential, and resources to be self-supporting is supported by the evidence. Thus, the court did not err, let alone commit plain error, when it made an award of indefinite duration.

I. Facts

{¶5} After the parties married in 1987, they had three daughters; one of whom is still a minor and will turn 18 in 2014. During the marriage, Ms. Cornelius was primarily a homemaker, and the family lived on Mr. Cornelius' salary. Beginning in 2005, Mr. Cornelius was unemployed for approximately 18 months. He accepted employment in November 2006 in Virginia where he rented a room in a house and initially came home every weekend. The parties anticipated that the entire family would eventually move to Virginia but they delayed this plan because of high housing costs in Virginia and their middle child's desire to finish high school in Ohio. After the child graduated, they continued to delay the family move. As time went on, the parties decided they were no longer compatible.

{¶6} Ms. Cornelius filed for divorce on January 14, 2011. The matter proceeded to a bench trial before a magistrate where the parties largely agreed on matters related to their minor child and the property division. The primary points of contention were spousal support and the termination date of the marriage, which was significant because Mr. Cornelius' retirement assets increased $184,186.77 between the different de facto termination dates the parties urged the court to select. The magistrate recommended that the trial court use December 31, 2010, the date Ms. Cornelius advocated for, as the de facto termination date. The magistrate also recommended that Mr. Cornelius pay Ms. Cornelius $3,000 per month in spousal support for an indefinite period of time and designate Ms. Cornelius as his life insurance beneficiary to the extent of the support obligation. Mr. Cornelius filed objections to the magistrate's decision, complaining in part about the recommended termination date and amount of spousal support. The trial court overruled the objections and adopted the magistrate's recommendations. This appeal followed.

II. Assignments of Error

{¶7} Mr. Cornelius assigns the following errors for our review:

I. THE TRIAL COURT ERRED IN NOT SELECTING THE END OF CALENDAR YEAR 2008 AS THE DE FACTO TERMINATION DATE OF THE MARRIAGE.

II. THE TRIAL COURT ERRED IN REQUIRING HUSBAND TO DESIGNATE WIFE AS BENEFICIARY OF A LIFE INSURANCE POLICY TO THE EXTENT OF THE SPOUSAL SUPPORT OBLIGATION.

III. THE TRIAL COURT ERRED AND ORDERED AN EXCESSIVE

AMOUNT OF SPOUSAL SUPPORT BY ORDERING APPELLANT TO PAY THREE THOUSAND DOLLARS ($3,000.00) PER MONTH OF SPOUSAL SUPPORT.

IV. THE TRIAL COURT ERRED IN CREATING AN INDEFINITE

DURATION FOR SPOUSAL SUPPORT.

III. Duration of the Marriage

{¶8} In his first assignment of error, Mr. Cornelius contends that the trial court erred when it selected the de facto termination date of the marriage. "Trial courts possess broad discretion in choosing the appropriate marriage termination date for purposes of property valuation." Soulsby v. Soulsby, 4th Dist. No. 07CA1, 2008-Ohio- 1019, ¶ 26, citing Berish v. Berish, 69 Ohio St.2d 318, 319, 432 N.E.2d 183 (1982). "Thus, we will not disturb the termination of marriage date absent an abuse of discretion." Id., citing Berish at 319. The phrase "abuse of discretion" implies that the court's attitude is unreasonable, unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). "When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court." In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).

{¶9} "The duration of the marriage is critical in distinguishing marital, separate, and post-separation assets and liabilities, and determining appropriate dates for valuation." Liming v. Damos, 4th Dist. No. 08CA34, 2009-Ohio-6490, ¶ 26, citing Eddy v. Eddy, 4th Dist. No. 01CA20, 2002-Ohio-4345, ¶ 23. Under R.C. 3105.171(A)(2), "during the marriage" means whichever of the following is applicable:

(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;

(b) If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, "during the marriage" means the period of time between those dates selected and specified by the court.

{¶10} "Thus, the court may presume the date of the final hearing for divorce is the appropriate termination date of the marriage unless the court determines that the application of such a date would be inequitable." Liming at ¶ 27. Accordingly, "[e]quity may occasionally require valuation as of the date of the de facto termination of the marriage. The circumstances of a particular case may make a date prior to trial more equitable for the recognition, determination and valuation of relative equities in marital assets." Berish, supra, at 320. As the Berish Court explained:

The choice of a date as of which assets available for equitable distribution should be identified and valued must be dictated largely by pragmatic considerations. The public policy giving rise to equitable distribution is at least in part an acknowledgment that marriage is a shared enterprise or joint undertaking. While marriage is literally a partnership, it is a partnership in which the contributions and equities of the partners do differ from individual case to individual case. Assets acquired by the joint efforts of the parties should be, on termination, eligible for distribution. But the precise date upon which any marriage irretrievably breaks down is extremely difficult to determine, and this court will avoid promulgating any unworkable rules with regard to this determination. It is the equitableness of the result reached that must stand the test of fairness on review. Id. at 319-320.

{¶11} "This court has noted that trial courts generally 'use a de facto termination of marriage date when the parties separate, make no attempt at reconciliation, and continually maintain separate residences, separate business activities and/or separate bank accounts.' " Murphy v. Murphy, 4th Dist. No. 07CA35, 2008-Ohio-6699, ¶ 38, quoting Soulsby, supra, at ¶ 29. "Courts should be reluctant to use a de facto termination of marriage date solely because one spouse unilaterally vacates the marital home." Soulsby at ¶ 29. However, the " 'trial court may use a de facto termination of marriage date when the evidence clearly and bilaterally shows that it is appropriate based upon the totality of the circumstances.' " Murphy at ¶ 38, quoting Soulsby at ¶ 29.

{¶12} The parties agree with the trial court's implicit determination that it would be inequitable to use the date of the final hearing as the termination date of the marriage. However, Mr. Cornelius claims that the trial court erred when it used December 31, 2010, the date Ms. Cornelius sought, as the de facto termination date. He argues that the court should have used December 31, 2008. The value of Mr. Cornelius' retirement accounts increased $184,186.77 between this date and the date the trial court used.

{¶13} Mr. Cornelius argues that the following facts unequivocally demonstrate the parties made a bilateral decision to terminate the marriage by the end of 2008. By May 2007, both parties knew Ms. Cornelius and the girls would not be moving to Virginia. The last family vacation occurred in 2007. Ms. Cornelius and the children took a vacation without him in July 2008. The last traditional family holiday schedule occurred in 2007. Mr. Cornelius testified that sexual relations ended after 2007.

Although Ms. Cornelius testified that they might have ended in 2009, she was not certain. During Easter 2008, the parties seriously talked about a divorce or dissolution, and the first separation agreement draft was made in 2008. "An attorney responded to Mrs. Cornelius about the separation agreement in August 2008, even though the separation agreement was not signed * * *." (Appellant's Br. 7). Mr. Cornelius set up a separate bank account when he moved to Virginia. The parties signed up for a class for divorcing parents before the end of 2008 even though they did not actually attend until early 2009. The parties never sought counseling, and the record is devoid of attempts at reconciliation. Mr. Cornelius explicitly testified no attempts were made in 2009 or 2010. Mrs. Cornelius stated in various affidavits that the parties separated in 2008. In addition, Mr. Cornelius argues evidence that the parties' finances remained intertwined after 2008 is not dispositive because Ms. Cornelius did not work and the parties had a common interest in making sure "all necessary payments were made, that the principal marital asset (the house) was maintained, and that the three daughters were provided for." (Appellant's Br. 9). He did these things "as a business arrangement, as a parent, and as a father, but no longer as a husband." (Appellant's Br. 9).

{ΒΆ14} Undoubtedly the evidence indicates the parties had marital problems and contemplated legal separation by the end of 2008. Nonetheless, we defer to the trial court's determination on this issue as long as it is based upon reason and has factual support in the record. Based on the testimony at the divorce hearing, the trial court could reasonably conclude that Mr. Cornelius' desire to end the marriage was unilateral until December 2010. The trial court was free to believe Ms. Cornelius' testimony that until then, she remained hopeful that the parties would resolve their problems as they had in the past, i.e., with the passage of time as opposed to formal counseling, particularly in light of Mr. Cornelius' continued participation in the marriage. As the court pointed out, neither party had an extramarital affair. The parties never reached a separation agreement, and Mr. Cornelius "took no steps to legally terminate the marriage. He continued in the same pattern of behavior after the date of the alleged de facto termination as before, coming home on a regular basis, providing support, etc., until ...


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