Asher v. Asher, Unpublished Decision (6-5-2000)
Asher v. Asher, Unpublished Decision (6-5-2000)
Opinion of the Court
OPINION
Defendant Kenneth A. Asher appeals a judgment of the Court of Common Pleas, Domestic Relations Division of Holmes County, Ohio, which granted the plaintiff Georgianna Asher a divorce from appellant, awarded her spousal support and divided the marital and separate properties between the parties. Appellant assigns two errors to the trial court:THE TRIAL COURT ERRED AS A MATTER OF LAW BY ABUSING ITS DISCRETION IN AWARDING SPOUSAL SUPPORT OF $9,000 A YEAR TO PLAINTIFF WIFE WHERE DEFENDANT HUSBAND EARNS APPROXIMATELY $6,000 A YEAR WITH PROBABLE EARNINGS OF $12,000 A YEAR.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED AS A MATTER OF LAW BY ABUSING ITS DISCRETION IN AWARDING THE MARITAL PROPERTY TO PLAINTIFF WIFE AND NOT MAKING A MARITAL PROPERTY DIVISION IN AN EQUITABLE MATTER IN ACCORDANCE WITH R.C. 3105.17.1.
The Supreme Court has crafted the abuse of discretion standard to be used in reviewing trial court's determinations in domestic relations cases, Booth v. Booth (1989),
(a) the income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.17.1 of the Revised Code;
(b) The relative earning abilities of the parties;
(c) the ages and the physical, mental, and emotional conditions of the parties;
(d) the retirement benefits of the parties;
(e) the duration of the marriage.
(f) 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;
(g) The standard of living of the parties established during the marriage;
(h) the relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
(k) the time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
(l) The tax consequences for each party, of an award of spousal support;
(m) the lost income production capacity of either party that resulted from that party's marital responsibilities;
(n) any other factor that the court expressly finds to be relevant and equitable.
The trial court awarded appellee spousal support of approximately $9,000 per year, while finding appellant earns approximately $6,000 per year but could earn approximately $12,000 per year. Appellant urges the spousal support award is so high as to constitute an abuse of discretion. We agree. On the record before us, the trial court has awarded appellee 75 percent of appellant's probable earning potential, and more than his total current income. The magistrate's findings of fact and conclusions of law discuss the statutory factors of section
(1) The duration of the marriage;
(2) The assets and liabilities of the spouses;
(3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage;
(4) The liquidity of the property to be distributed;
(5) The economic desirability of retaining intact an asset or an interest in an asset;
(6) the tax consequences of the property division upon the respective awards to be made to each spouse;
(7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property;
(8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses;
(9) Any other factor that the court expressly finds to be relevant and equitable.
We have reviewed the record, and we find the trial court did not abuse its discretion in making the award of marital property, in light of all the circumstances. Unfortunately, there simply are not sufficient marital resources to provide for both parties. Given the parties health, and the distribution of separate property, we find that the trial court's order is equitable. The second assignment of error is overruled.
For the foregoing reasons, the judgment of the Court of Common Pleas, Domestic Relations Division, of Holmes County, Ohio, is affirmed in part and reversed in part, and the cause is remanded to that court for recomputation of an equitable amount of spousal support.
WISE, J. and EDWARDS, J. CONCUR.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.