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Dague v. Dague

Court of Appeals of Ohio, Eleventh District

September 30, 2013

KELLY J. DAGUE, Plaintiff-Appellee,
v.
KENNETH M. DAGUE, Defendant-Appellant.

Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations Division, Case No. 10DR000630.

Sandra A. Dray, Sandra A. Dray Co. (For Plaintiff-Appellee).

L Bryan Carr, Carr, Feneli & Carbone Co. (For Defendant-Appellant).

OPINION

THOMAS R. WRIGHT, J.

(¶1} This appeal is from a final decree in a divorce proceeding before the Lake County Court of Common Pleas, Domestic Relations Division. Appellant, Kenneth M. Dague, contests the trial court's rulings on the issues of spousal support and payment of attorney fees. Regarding both issues, he primarily contends that the trial court erred in calculating the extent of his yearly income.

(¶2} Appellant and appellee, Kelly J. Dague, were married for roughly ten years and resided in Lake County. Although the couple did not have any children during their marriage, three children lived with them in the marital residence. Two of the children were appellee's daughters from a prior marriage, while the third was her adopted son. Until the three children were emancipated, appellant provided some support for them.

(¶3} Throughout their marriage, appellant was the primary wage earner for the couple. Specifically, appellant worked as a journeyman wireman electrician for various union locals in northeastern Ohio and the state of West Virginia. As a union member, he would be assigned by the locals to perform electrical work for private companies at construction sites. During the mid-2000's, appellant's work was fairly consistent, and he was able to earn over $84, 000 one year. However, toward the end of the decade, the consistency of his work decreased, he received unemployment compensation on some occasions, and the amount of his yearly income diminished.

(¶4} In addition to the work from the union locals, appellant often supplemented his income by performing small "side" jobs for acquaintances or family members. Even though the extra income was helpful to the couple during periods in which appellant was unemployed, neither party kept records of the supplemental work. Appellant also received compensation for driving a limousine on the weekends, but this part-time work ended by the late 2000's.

(¶5} Prior to the marriage, appellee was able to hold a full-time job and earn as much as $16, 000 a year. However, while she was married to appellant, appellee never maintained full-time employment. Her most consistent position was a two-year stint with a retail store, during which she worked 14 hours per week and earned approximately $5, 000 per year. According to appellee, she could have worked additional hours at the store, but appellant did not want her to be away from their home any longer. Eventually, appellee was dismissed from the retail store when she was accused of stealing.

(¶6} Although appellee had a few other short-lived jobs with private companies, her primary occupation during the marriage was doing odd jobs for various individuals whom she knew. For example, she would assist some senior citizens in obtaining their groceries or cleaning their homes. The amount of income she received from this type of work was minimal.

(¶7} The parties separated in September 2010, within one month after appellee lost her position with the retail store. Appellee immediately instituted the divorce action, and appellant filed a counterclaim. During the ensuing year, appellee did not make any concerted effort to find steady employment. Instead, she continued to perform the low-paying odd jobs. As the justification for her inactivity, appellee maintained that she had certain allergies which limited the type of jobs she could hold.

(¶8} An evidentiary hearing on the merits of both divorce claims was scheduled for early September 2011. On the date of the hearing, the parties were able to reach a settlement of all pending issues, except for the payment of spousal support and attorney fees. The settled issues were subsequently incorporated into the final divorce decree. The final hearing on the spousal support and attorney fees was then re-scheduled before a court magistrate for late September.

(¶9} During that hearing, both sides presented considerable evidence as to the extent of appellant's yearly income throughout the latter half of their marriage. In regard to 2011, appellant testified that he had only worked in three of the nine months, and had been collecting unemployment compensation for the remainder of the year. He further testified that, during those three months of work, he was earning between $1, 200 and $1, 300 each week; however, he did not submit any documentation to support this part of his testimony. As to the issue of appellee's attorney fees, she introduced evidence showing that she had incurred fees totaling $8, 413.70 in litigating the action.

(¶10} In her written decision, the magistrate found that appellant's yearly income was $60, 000, while appellee's yearly income was $6, 318. In calculating appellant's figure, the magistrate averaged his total income over the five-year period from 2006 to 2010. However, the magistrate did not include in her calculation any of his income from 2011. Based upon these figures, the magistrate held that appellant should be required to pay spousal support to appellee in the amount of $1, 500 per month for a period of 44 months. As to the issue of attorney fees, the magistrate held that appellant should pay for $5, 000 of appellee's attorney fees. In support of this holding, the magistrate noted that appellee did not receive any liquid assets as part of the property distribution, ...


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