Supreme Court of OhioJul 6, 1983
5 Ohio St. 3d 217 (Ohio 1983)
5 Ohio St. 3d 217450 N.E.2d 1140

No. 81-1935

Decided July 6, 1983.

Divorce and alimony — Termination of sustenance alimony payments — Judgment of the trial court should not be substituted, when — "Abuse of discretion," defined — Consideration of spousal employment with respect to alimony modification — Statutory allowance of interest — R.C. 1343.03.

O.Jur 2d Divorce § 272.

Absent a showing that a trial court abused its discretion, a termination of sustenance alimony payments in a modification proceeding should not be disturbed.

APPEAL from the Court of Appeals for Summit County.

The parties to this action, Rita M. Blakemore, appellee herein, and Robert W. Blakemore, appellant herein, were married in 1955.

In April 1975, the appellant left the marital home and took up separate residence in Kent, Ohio.

The original divorce action was decided on August 29, 1977, and the appellee was granted a divorce on the grounds that the parties had lived apart for more than two years. The decree rendered provided for custody of the minor children with appellee, visitation rights, child support and sustenance alimony to the appellee in the amount of $500 per month, subject to certain conditions. Appellee was also awarded the marital residence located in Silver Lake, Ohio; an income-producing parking lot in downtown Akron; an automobile; and $5,000 in cash. The appellant was awarded the remaining properties.

Appellee filed a notice of appeal from the trial court's judgment. On March 29, 1978, the court of appeals held that the alimony award was insufficient and contrary to law, and ordered the appellant to pay appellee sustenance alimony at the rate of $800 per month for a period of thirty-six months. At the conclusion of the thirty-six month period, the sustenance alimony payments would revert back to $500 per month until appellee remarried, died, lived in concubinage, or the appellant died, or upon the expiration of ten years and one month from September 1, 1977. The appellate court also expressly vacated the trial court's provision for modification of sustenance alimony should appellee obtain gainful employment.

Shortly thereafter, appellee obtained employment in June 1978 with the First National Bank of Akron at $6,000 per year. She subsequently changed employers and began working at Akron City Hospital in December 1978 and was paid approximately $11,000 per year.

On September 30, 1980, appellant filed a motion with the trial court seeking the modification and/or termination of the sustenance alimony award due to a substantial change in circumstances. On March 20, 1981, the trial court granted appellant's motion and terminated appellee's sustenance alimony, noting that appellee's income exclusive of the alimony payments exceeded her needs by her own testimony.

Appellee appealed to the court of appeals. On October 14, 1981, the appellate court reversed the trial court and reinstated the sustenance alimony payments, and imposed a fifteen percent interest rate on the arrearages created by the reinstatement, and remanded the cause to the trial court for an award of attorney's fees to the appellee.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Messrs. Calhoun, Waddell, Ufholz Hunt and Mr. Howard L. Calhoun, for appellee.

Blakemore, Rosen Norris Co., L.P.A., Mr. Bernard I. Rosen and Mr. James F. Burke, Jr., for appellant.

The leading case with respect to termination of sustenance alimony in Ohio, Wolfe v. Wolfe (1976), 46 Ohio St.2d 399 [75 O.O.2d 474], stated at page 414:

"Any grant of `alimony' for sustenance is necessarily co-extensive with the court's determination that it is needed and warranted. Such authentication and supervision is accomplished through the continuing jurisdiction of the court."

Then, in Cherry v. Cherry (1981), 66 Ohio St.2d 348 [20 O.O.3d 318], this court stated at page 355:

"* * * A trial court must have discretion to do what is equitable upon the facts and circumstances of each case.

"Of course, a trial court's discretion, though broad, is not unlimited. A reviewing court may modify or reverse a property division, if it finds that the trial court abused its discretion in dividing the property as it did. Section 3 (B), Article IV of the Ohio Constitution; App. R. 12."

The issue before us in this cause is whether the court of appeals was correct in reinstating the sustenance alimony payments terminated by the trial court. Stated differently, we must determine whether the trial court abused its discretion in terminating alimony payments to the appellee in the modification decision of March 20, 1981.

A trial court in any domestic relations action has broad discretion in fashioning an equitable division of marital property, Berish v. Berish (1982), 69 Ohio St.2d 318 [23 O.O.3d 296]; and when appropriate, in awarding alimony based on need. Wolfe v. Wolfe, supra.

In the instant case, the court of appeals did not apply the proper standard of review in reversing the trial court's termination of sustenance alimony payments. The trial court's judgment cannot be disturbed on appeal absent a showing that the trial court abused its discretion. Koegel v. Koegel (1982), 69 Ohio St.2d 355, at 357 [23 O.O.3d 320]; Cherry v. Cherry, supra, at 355; Berish, supra, at 319. See, also, Dennison v. Dennison (1956), 165 Ohio St. 146, 150 [59 O.O. 210].

The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]:

"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. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Conner v. Conner (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 484]."

Although Adams dealt with "abuse of discretion" in a criminal law context, our citation of Conner implies that the term has the same meaning when applied in a domestic relations context.

The appellate court in the instant case was incorrect in substituting its judgment for that of the trial court. Given the evidence in the record that was carefully reviewed by the trial judge, we cannot find that the decision to terminate sustenance alimony to appellee was either unreasonable, arbitrary or unconscionable.

The trial judge in the case sub judice found sufficient changed circumstances which he believed justified a termination of sustenance alimony payments, when he made his specific findings of fact and conclusions of law. In particular, with reference to the factors enumerated in R.C. 3105.18, the trial judge found that appellee had acquired employment at an annual salary of approximately $11,500 per year with fringe benefits such as medical insurance and a pension plan; that she had sold the marital home and obtained a profit which enabled her to purchase a new home free of mortgages or encumbrances; that she was able to loan a friend $2,100; that she had at the time of the hearing, $47,000 in various bank accounts; and that she was netting a little in excess of $7,000 per year on rents from a parking lot that she received in the original property settlement.

R.C. 3105.18 provides:
"(A) In a divorce, dissolution of marriage, or alimony proceedings, the court of common pleas may allow alimony as it deems reasonable to either party.
"The alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court deems equitable.
"(B) In determining whether alimony is necessary, and in determining the nature, amount, and manner of payment of alimony, the court shall consider all relevant factors, including:
"(1) The relative earning abilities of the parties;
"(2) The ages, and the physical and emotional conditions of the parties;
"(3) The retirement benefits of the parties;
"(4) The expectancies and inheritances of the parties;
"(5) The duration of the marriage;
"(6) The extent to which it would be inappropriate for a party, because he will be custodian of a minor child of the marriage, to seek employment outside the home;
"(7) The standard of living of the parties established during the marriage;
"(8) The relative extent of education of the parties;
"(9) The relative assets and liabilities of the parties;
"(10) The property brought to the marriage by either party;
"(11) The contribution of a spouse as homemaker.
"(C) In an action brought solely for an order for alimony under section 3105.17 of the Revised Code, any continuing order for periodic payments of money entered pursuant to this section is subject to further order of the court upon changed circumstances of either party."

Taking into account all of these factors, the trial judge held that "[appellee's] income exclusive of the alimony payments exceeds her needs by her own testimony." These changed circumstances stand in stark contrast to the situation the appellee confronted at the time of the divorce, when she was suffering from mental and emotional difficulties, was unemployed and was in need of alimony payments to at least meet her expenses.

In Wolfe, this court declined to set up a rule whereby post-divorce unchastity, standing alone, would be sufficient grounds to terminate sustenance alimony. By the same token, by holding that the trial judge did not abuse his discretion in terminating the sustenance alimony payments, we are not suggesting that the acquisition of gainful employment automatically eliminates the need for sustenance alimony. However, it is a factor which could and should be considered in a modification or termination proceeding. As we noted in Cherry, supra, at 355:

"* * * it is ill-advised and impossible for any court to set down a flat rule concerning property division upon divorce."

Similarly, we find it ill-advised to set down a per se rule concerning spousal employment with respect to an alimony modification proceeding. In addition, our decision today should not be interpreted as a foreclosure to appellee for any possible reinstatement of alimony in the future. Under the continuing jurisdiction of the trial court, the appellee can move to reinstate the alimony upon proper pleading and proof of need therein. Wolfe, supra.

Taking into account the totality of circumstances as contained in the record, along with the findings of fact and conclusions of law set forth by the trial judge, we hold that the trial judge did not abuse his discretion in terminating the alimony payments in the modification proceeding below.

Although our decision here nullifies the effect of the appellate court's imposition of a fifteen percent interest rate on alimony arrearages, we must note that such an interest rate is clearly contrary to law.
R.C. 1343.03 provides in pertinent part:
"In cases other than those provided for in sections 1343.01 and 1343.02 of the Revised Code, when money becomes due and payable upon * * * all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of a contract, or other transaction, the creditor is entitled to interest at the rate of eight per cent per annum, and no more."
Given this explicit language, the court of appeals erred as a matter of law in setting an interest rate above the statutory allowance.

Therefore the judgment of the court of appeals is reversed.

Judgment reversed.


PATTON, J., of the Eighth Appellate District, sitting for W. BROWN, J.

KOEHLER, J., of the Twelfth Appellate District, sitting by assignment.