APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, C.P.C. No. 11DR-01-18
Taft, Stettinius & Hollister, LLP, and Eugene B. Lewis, for appellee.
Kemp, Schaeffer & Rowe Co., L.PA., and Jacqueline L. Kemp, for appellant.
(¶ 1} Defendant-appellant, William C. Wilkinson, is appealing from certain provisions of his decree of divorce. He assigns three errors for our consideration:
[I.] The Trial Court's award of spousal support constitutes error as a matter of law and an abuse of discretion.
[II.] The Trial Court erred as a matter of law and abused its discretion by including both parties' legal fees as marital liabilities on the marital balance sheet.
[III.] The Trial Court erred and abused its discretion by awarding Appellee attorneys' fees.
(¶ 2} William and Susan Wilkinson separated in December 2006 after almost 40 years of marriage. William was a very successful attorney with Thompson Hine, LLP, a well-respected law firm. Susan had done very little work outside the home and had minimal personal income during the marriage. As a result, the trial court judge who heard this divorce case imputed minimum wage income to her-$16, 016 per year.
(¶ 3} The trial court imputed income of $525, 955 per year to William, which was consistent with his income from Thompson Hine, LLP during his last two years with the firm and his own testimony at trial that he was optimistic to make more money in his solo practice. William had left the law firm over four years after the couple separated, but before the trial of his divorce case. Because the marriage was of such long duration, permanent spousal support was appropriate, with the amount of that spousal support being the point of contention. On December 31, 2012, the trial court awarded supposal support of $230, 000 per year effective June 1, 2013. William timely appealed the trial court order.
(¶ 4} This court reviews spousal support orders under an abuse of discretion standard as a trial court is generally afforded wide latitude in deciding spousal support issues. Grosz v. Grosz, 10th Dist. No. 04AP-716, 2005-Ohio-985, ¶ 9, citing Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The appellate court must not substitute its judgment for that of the trial court when reviewing under an abuse of discretion standard. Id. The decision to impute income for the purpose of spousal support is also within the discretion of the trial court. Havanec v. Havanec, 10th Dist. No. 08AP-465, 2008-Ohio-6966, ¶ 23.
(¶ 5} Counsel for William asserts in the brief filed on his behalf that "before imputing income to a retired party, the trial court must make a finding that the retired party's decision to retire was based on an intent to defeat an award of spousal support." (Emphasis sic; Appellant's brief, at 8.) This is simply not in accord with the case law in this district. Instead, trial courts may impute income to a party who has a history of income at a certain level or has the potential for such income, even if the party earned less at the time of the divorce trial. Havanec at ¶ 8. "When considering the relative earning abilities of the parties in connection with an award of spousal support, Ohio courts do not restrict their inquiry to the amount of money actually earned, but may also hold a person accountable for the amount of money a 'person could earn if he made the effort.' " Id., citing Beekman v. Beekman, 10th Dist. No. 90AP-780 (Aug. 15, 1991). Then the trial court had every right to impute income to a lawyer who, for several years in the past, had income in the seven figures only to claim no income at the time of trial.
(¶ 6} William mistakenly relies on Friesen v. Friesen, 10th Dist. No. 07AP-110, 2008-Ohio-952, to support his argument. The appellant in Friesen moved for spousal support to be modified and reduced due to his recent retirement, the parties had been divorced for several years at that time. See Friesen. We determined that the trial court did not appear to have examined the evidence with an eye to whether the appellant's intent in retiring was to avoid his support obligation. Id. at ¶ 46. This determination was necessary in finding if the appellant had voluntarily reduced his income which created the change in circumstances necessary for a modification. In contrast, the case at bar is not a modification but an initial determination of spousal support, there is no change in circumstance as the trial court is examining the entirety of the circumstance of the parties for the first time. Friesen is also distinguishable in that William never was actually retired. The record ...