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Drouhard v. Drouhard

Court of Appeals of Ohio, Ninth District, Wayne

August 21, 2017

FRANKLIN DROUHARD Appellee
v.
REGINA DROUHARD Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 15-DR-B-0014

          APPEARANCES: L. RAY JONES, Attorney at Law, for Appellant.

          R. J. HELMUTH, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER J.

         {¶1} Defendant-Appellant, Regina Drouhard ("Wife"), appeals a decree of divorce entered by the Wayne County Court of Common Pleas, Domestic Relations Division. For the reasons set forth below, we affirm in part, reverse in part, and remand.

         I.

         {¶2} The parties were married on October 30, 1987. Plaintiff-Appellee, Franklin Drouhard ("Husband"), filed a complaint for divorce against Wife in the Wayne County Court of Common Pleas, Domestic Relations Division, on January 16, 2015. The parties had separated and been living apart since February of 2007. Wife answered and counterclaimed for divorce. Wife also filed a motion for temporary orders seeking spousal support.

         {¶3} On March 10, 2015, a magistrate held a hearing on Wife's motion for temporary orders. After hearing argument from both parties, the magistrate took the matter under advisement and issued a decision that "denied and overruled" Wife's request for temporary spousal support. In doing so, the magistrate "put great weight on the fact the parties have been separated for seven years and certainly within those seven years, [Wife] could have asked for some type of financial relief in the form of a divorce or a legal separation if she needed to rely on [Husband] for financial assistance." Wife filed timely objections to the magistrate's decision, which Husband opposed. On April 23, 2015, the trial court summarily overruled Wife's objections to the magistrate's decision.

         {¶4} On February 9, 2016, the magistrate held a final hearing on Husband's complaint for divorce and on Wife's counterclaim for divorce. Both parties were present and represented by counsel at the final hearing. On May 16, 2016, the magistrate issued a decision "find[ing] that the parties admitted that they are incompatible and should be granted a divorce on those grounds." Furthermore, for purposes of dividing marital property, the magistrate determined that the parties' were married "from October 30, 1987 through February 1, 2007." The magistrate selected February 1, 2007, as the de facto termination of marriage date because that was when the parties separated. Lastly, as relevant to this appeal, the magistrate determined that, based on the factors enumerated in R.C. 3105.18(C)(1), Husband shall pay spousal support to Wife "in the amount of $150 per month for a third the length of the marriage, which is 73 months, " for a total of $10, 950.00. The trial court adopted the magistrate's decision on May 17, 2016. Wife thereafter filed timely objections to the magistrate's decision and filed a transcript of the final hearing with the trial court. On July 5, 2016, the trial court overruled Wife's objections to the magistrate's decision. Wife then filed a motion for reconsideration, which the trial court denied on July 17, 2016.

         {¶5} Wife filed this timely appeal and presents two assignments of error for our review.

         II.

         Assignment of Error I

         A spousal support award of $150 per month, from June 1, 2016 to July 1, 2022, plus the trial court refusing to grant an initial temporary award or a final award of attorney fees and costs to Mrs. Drouhard, is an abuse of discretion.

         {¶6} In her first assignment of error, Wife argues that the trial court abused its discretion by denying her initial motion for temporary spousal support, by ordering Husband to make "minimal" monthly spousal support payments, and by not awarding her attorney's fees and court costs.

         {¶7} Generally, absent an error of law, "the decision to adopt, reject, or modify a magistrate's decision lies within the discretion of the trial court and should not be reversed on appeal absent an abuse of discretion." Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5. "In so doing, we consider the trial court's action with reference to the nature of the underlying matter." Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 2009-Ohio-3139, ¶ 18.

         A. Temporary Spousal Support

         {¶8} Initially, we note that although Wife's first assignment of error contends that the trial court erred by denying her motion for temporary spousal support, the argument section of her brief omits any discussion of temporary spousal support. App.R. 16(A)(7) provides that an appellant's brief shall include "[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." This Court has consistently stated that "[i]f an argument exists that can support [an] assignment of error, it is not this court's duty to root it out." Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998), citing App.R. 12(A)(2) and App.R. 16(A)(7). Accordingly, Wife's first assignment of error is overruled to the extent that it concerns the trial court's denial on her motion for temporary spousal support.

         B. Spousal Support

         {¶9} Wife next argues that the trial court should have ordered Husband to pay her more spousal support, as the $150.00 per month spousal support award is inequitable due to the disparity in the parties' income. Specifically, Wife notes that Husband makes more money and has a "comfortable" standard of living, whereas she is impoverished and "barely surviving on * * * $733 a month, HEAP [assistance], and $189 a month in food stamps." The trial court ordered Husband to pay Wife $150.00 per month in spousal support for a total 73 months, beginning on June 1, 2016, and concluding on July 1, 2022, unless the aggregate sum was paid sooner.

         {¶10} "This Court reviews a spousal support award under an abuse of discretion standard." Hirt v. Hirt, 9th Dist. Medina No. 03CA0110-M, 2004-Ohio-4318, ¶ 8. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, a reviewing court may not simply substitute its own judgment for that of the trial court. Pons v. Ohio State Med. Bd, 66 Ohio St.3d 619, 621 (1993). Moreover, "[t]he burden is on the party challenging the award to show that the award is unreasonable, arbitrary, or unconscionable in order for this Court to overturn the award." Gregory v. Gregory, 9th Dist. Wayne No. 98CA0046, 2000 WL 877823, *4 (July 6, 2000).

         {¶11} R.C. 3105.18(B) provides that "[i]n divorce and legal separation proceedings, * * * the court of common pleas may award reasonable spousal support to either party." "In determining whether spousal support is appropriate and reasonable, " the court shall consider the 14 factors listed in R.C. ...


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