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Brown v. Brown

Court of Appeals of Ohio, Fifth District

June 25, 2013

LINDA L. BROWN Plaintiff - Appellee
v.
CORY L. BROWN Defendant-Appellant

Appeal from the Coshocton County Court of Common Pleas, Case No. 10-DV-0756

For Plaintiff-Appellee COLE GERSTNER Gottlieb, Johnston, Beam & Dal Ponte, P.L.L.

For Defendant-Appellant DAN GUINN.

JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

{¶1} Appellant Cory L. Brown appeals a judgment of the Coshocton County Common Pleas Court granting appellee Linda L. Brown a legal separation.

STATEMENT OF FACTS AND CASE

{¶2} The parties were married on April 3, 1970. Appellee filed the instant action seeking a legal separation from appellant. Appellant filed an answer admitting the grounds of incompatibility for a legal separation, and also counterclaimed for divorce.

{¶3} The case proceeded to a hearing before a magistrate. At the time of the hearing, appellee was 59 years old. She had significant health issues, including post status hysterectomy, a prolapsed bladder, and general incontinence. She had only worked full-time outside the home for two years of the marriage, and was employed part-time at Marilyn's Natural Foods. Appellant was 62 years old and also had significant health problems, including arthritis and prostate difficulties. Appellant had been retired on social security disability for about five years.

{¶4} The magistrate recommended that appellee be granted a legal separation and that appellant's counterclaim for divorce be denied. The magistrate recommended that appellant pay spousal support to appellee in the amount of $369.00 per month for eight years.

{¶5} Appellant filed objections to the magistrate's decision. The trial court overruled his objections concerning spousal support and grounds for divorce. The court found that a legal separation would allow appellee to remain on appellant's health insurance from his former employer, and granting appellant's request for divorce would place appellee in jeopardy because health insurance coverage is not likely to be available. The court found that based on appellee's health condition and the 41-year length of the marriage the just result was to grant the legal separation and dismiss the divorce.

{¶6} Appellant assigns two errors on appeal:

{¶7} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT THE WIFE SHOULD BE AWARDED SPOUSAL SUPPORT DUE TO THE LARGE PROPERTY AWARD SHE RECEIVED FROM THE HUSBAND.

{¶8} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE HUSBAND'S COUNTERCLAIM FOR DIVORCE WHEN HE HAD PROPER GROUNDS PURSUANT TO R.C. 3105.01."

I.

{¶9} Appellant argues that the court erred in awarding spousal support to appellee. He argues that the award was unreasonable because she received a large property settlement in the separation, and she is employed and has the ability to work more hours than she chooses to work.

{¶10} Our review of a trial court's decision relative to spousal support is governed by an abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). We cannot substitute our judgment for that of the trial court unless, when considering the totality of the circumstances, the trial court abused its discretion. Holcomb v. Holcomb, 44 Ohio St.3d 128, 541 N.E.2d 597 (1989). In order to find an abuse of discretion, we must determine that the trial ...


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