Gray v. Gray, Unpublished Decision (6-28-2001)
Gray v. Gray, Unpublished Decision (6-28-2001)
Opinion of the Court
In four assignments of error, appellant contends:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT AWARDING WIFE SUFFICIENT MEANS TO PROVIDE FOR HER FAMILY.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING WIFE SPOUSAL SUPPORT WHICH IS INADEQUATE AND UNFAIR.
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN AWARDING THE RESIDENTIAL HOME TO THE WIFE WHEN THE MORTGAGE AND COSTS FOR REPAIRS EXCEEDED ITS FAIR MARKET VALUE AND THE WIFE WAS PROVIDED NO VIABLE REMEDY OR MEANS OF SELLING THE HOUSE TO DOWN-SIZE TO SOMETHING MORE AFFORDABLE AND IN LINE WITH HER AVAILABLE CASH FLOW.
IV. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT AWARDING WIFE THE FULL AMOUNT OF HER REQUESTED ATTORNEY'S FEES.
Appellee has not responded. Cf. App.R. 18(C). We find the trial court failed to make findings sufficient to support its spousal support award; therefore, we remand for further findings of fact pursuant to R.C.
The parties had two significant debts in addition to the mortgage. First, the parties had a loan from City Loan with a balance due of $2,200. Second, the parties owed appellant's father some $27,949.17 on a promissory note.
Appellee, age 44, earns $50,000 per year at Duquesne Lighting in Pittsburgh, Pennsylvania, while appellant, age 37, earns $17,000 as an account service representative at Sears. Appellee claimed monthly expenses of $3,100, while appellant claimed monthly expenses of $3,700.
The court awarded the marital home to appellant, equally dividing appellee's pension/retirement benefits among the parties. The parties retained their own automobiles. The court ordered appellee to pay the debt to City Loan but held each party responsible for one-half of the amount due to appellant's father. The court specifically found this constituted an equal division of property.
Appellee was ordered to pay child support totaling $779.97 per month (including a 2% processing charge). He was further ordered to pay $500 per month as spousal support, subject to the death of either party, the remarriage of spouse receiving spousal support or five (5) years, whichever first occurs. Finally, the court found plaintiff was entitled to reasonable attorney fees, which the court determined to be $5,000.
R.C.
The trial court must evaluate the evidence in accordance with each factor and then weigh the need for support against the ability to pay. Graham v. Graham (1994),
Although the trial court's judgment cited evidence relevant to many of the statutory factors, it failed to evaluate this evidence in its opinion. A mere recitation of the evidence is an insufficient basis for this court to review the appropriateness of the amount, terms and duration of a spousal support award. We refuse to speculate regarding the deliberative process employed by the trial court in reaching its spousal support award. Zeefe v. Zeefe (1998),
The third assignment of error contends the trial court abused its discretion by awarding appellant the marital home. Appellant claims she cannot afford to pay the mortgage, but she cannot sell it because the mortgage exceeds the value of the home and the home is in need of substantial repairs. She argues that the court should have provided her with a remedy for this dilemma.
The home was awarded to appellant as part of the division of marital property. Pursuant to R.C.
Finally, appellant argues that the court erred by awarding her only $5000 for attorney fees. R.C.
At trial, appellant's counsel orally represented to the court that he had expended 35.5 hours on this matter prior to the day of trial.1 He also informed the court that his hourly rate was $140 per hour; he did not charge a higher rate for court appearances. The court's award of $5,000 actually gave appellant slightly more than the $4970 (35.5 hours x $140 per hour) she requested at trial.
The court could properly find untimely appellant's subsequent efforts to increase the amount of her request for fees. Appellant did not submit any additional documentation to support an increased award until after the court had already issued a decision. That decision did not address attorney fees, so appellant's counsel requested reconsideration and attached additional evidence to its motion. The court treated this as a motion under Civ.R. 60(A) to correct a clerical mistake and granted it. Given this treatment of appellant's motion as a motion to correct a clerical error, the court could properly refuse to consider additional evidence. Accordingly, we find no abuse of discretion in the award of attorney fees in accordance with appellant's request at trial.
Therefore, we affirm the trial court's division of marital property and its award of attorney fees to appellant. We reverse the award of spousal support and remand for additional findings of fact.
This cause is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee her costs herein.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas, Domestic Relations Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
_______________________ KENNETH A. ROCCO, JUDGE:
DIANE KARPINSKI, A.J. and JAMES J. SWEENEY, J. CONCUR.
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