[Cite as Woody v. Woody,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

RICHARD R. WOODY, : : Plaintiff-Appellant, : Case No. 09CA34 : vs. : Released: December 6, 2010 : CAROL A. WOODY, : DECISION AND JUDGMENT : ENTRY Defendant-Appellee. : _____________________________________________________________ APPEARANCES:

Beth B. Ferrier, Athens, Ohio, for Appellant.

Susan L. Gwinn, Athens, Ohio, for Appellee. _____________________________________________________________

McFarland, P.J.:

{¶1} Appellant Richard R. Woody appeals the trial court’s decision

granting the parties a divorce. He first argues that the trial court wrongly

determined that it could not award him personal property that he left in the

former marital residence when, at the final hearing, appellant failed to

specifically request the magistrate to award him these items of property.

Even though appellant, by failing to raise this issue at the final hearing,

waived the issue, the trial court nonetheless possesses an independent duty

to review the magistrate’s decision. Appellant brought this issue to the trial

court’s attention at a time when the trial court could correct any error. Athens App. No. 09CA34 2

Moreover, the trial court has a duty to enter an order that disposes of all

items of the parties’ property. Accordingly, we agree with appellant that the

trial court erred by concluding that it could not enter any order that would

award appellant these items of property.

{¶2} Appellant next argues that the trial court erred by failing to

award him certain items of property. He observes that the trial court

sustained his objections to the magistrate’s failure to include certain items as

his separate property but then inexplicably neglected to include them in its

property division order. Because the trial court appears to have omitted

these items from its property division order, we remand to the trial court for

clarification.

{¶3} Appellant lastly asserts that the trial court erred by adopting the

magistrate’s spousal support recommendation. The record does not support

any finding that the trial court abused its discretion by awarding appellee

spousal support. The court considered the spousal support statute and

determined that spousal support was appropriate and reasonable.

{¶4} Accordingly, we sustain appellant’s first and second assignments

of error and remand these issues to the trial court. We overrule appellant’s

third assignment of error. Athens App. No. 09CA34 3

I.

FACTS

{¶5} On March 19, 1994, the parties married. On October 25, 2007,

appellant filed a complaint for divorce against appellee, and appellee

counterclaimed for divorce.

{¶6} On March 10, 2008, appellant filed a motion that requested the

magistrate permit him to retrieve “his personal property, including his farm

equipment and his white tail deer,” from the marital residence. At a June 25,

2008 hearing, appellant’s counsel agreed to reserve his motion regarding the

retrieval of his personal property for the final hearing.

{¶7} At the final hearing, the parties presented a six-page personal

property appraisal that listed property found in the former marital residence,

including items found in the kitchen, living room, family room, main

bedroom, hallway, bathroom, guest bedroom, den, basement, back porch,

canning kitchen, detached garage, and hunting trailer. The appraisal also

listed a value for appellee’s vehicle, a tractor, and various farm machinery.

The parties did not fully agree on how the court should divide the property,

but each presented evidence as to whether a certain item constituted his or

her separate property or whether the property constituted marital property.

At the hearing, appellant did not specifically reiterate his request to retrieve Athens App. No. 09CA34 4

his personal property as alleged in his March 10, 2008 motion, but some

testimony was presented regarding the deer, and the farm machinery was

included on the personal property appraisal.

{¶8} On March 6, 2009, the magistrate entered a decision. The

magistrate awarded each party his or her separate property. The magistrate

awarded appellant the following items of personal property as his separate

property: (1) an electric light; (2) a shop vac; (3) a metal cabinet; (4) a 15

million candle power road pro light; (5) two metal 24-inch squares; (6) a

Cummins 8-piece air ratchet socket set; (7) two mitre boxes; (8) several

metal and plastic gas cans; (9) a circular saw; (10) plumber kits; (11) a sabre

saw; (12) a hammer drill; (13) a highboy chest; (14) a coat closet; (15) a

wood captain’s chair; (16) a core welder; (17) a welder’s helmet; (18) an air

tool; (19) a chainsaw; and (20) a 12-gauge rifle. The magistrate found that

all property not awarded to appellee or appellant as separate property

constituted marital property. The magistrate directed the parties to equally

divide the marital property by alternating turns choosing $5,000 worth of

property and then selling and equally dividing the remaining property.

{¶9} The magistrate also determined that appellee is entitled to

spousal support. In reaching her decision, the magistrate first considered the

factors specified in R.C. 3105.18 and stated: Athens App. No. 09CA34 5

“In the present matter, the duration of the parties’ marriage was fourteen years four months. At the time of final hearing, [appellant] was 54 years old and, after a designated period of rehabilitation from recent ankle surgery, capable of working a 3/2 driving position with Wal-Mart with anticipated gross annual earnings of approximately $58,000.00 [Appellee] was 64 years old, unemployed (and had been since 1996), and suffering from multiple medical conditions which, in her treating physicians’ opinions, significantly impaired her ability to have gainful employment. [Appellee] testified that at most she may be able to work a part-time job which, at minimum wage, may earn her a gross annual income of approximately $7,800.00. Despite her education, minimum wage may be [appellee’s] maximum earning ability given that she has not worked in many years and she has not been employed in the field of her Master’s Degree since receiving it. Her only actual source of income was $382.00 per month from Social Security. The parties had no retirement benefits other than [Appellant’s] profit sharing plan and 401(k) with Wal-Mart which is a marital asset and which this Magistrate has recommended dividing equally but which the parties will not begin receiving for several years. In regards to the parties’ relative assets and liabilities, [Appellant] will receive real property which is unencumbered and [appellee] will receive a distributive award in the approximate amount of $33,725.43. In addition, all of the marital debt has been assigned to [appellant] for which he receives an offset against the distributive award. The standard of living that the parties established during the marriage was fairly modest—they did not live an extravagant lifestyle by any means. They also did not have any children of the marriage and neither party has minor children. It appears from the testimony that [appellant] contributed to [appellant’s] education in that [appellant] resided with [appellee’s] family during the week while attending school out of town. However, this has not increased the earning ability of [appellee] as her earning ability has been significantly compromised due to her medical conditions. Along those same lines it does not appear that additional education and/or training for [appellee] would be of benefit since that is not what Athens App. No. 09CA34 6

hampers her earning ability. No amount of education and/or training makes up for the debilitating medical conditions from which she suffers and the impact they have on her ability to work. Based on the above factors, it is the conclusion of the Magistrate that an award of some amount of spousal support to [appellee] is reasonable and appropriate. In determining the amount and duration, the Ohio Supreme Court’s proposed guidelines are taken into consideration. Under such guidelines the average amount and duration of support would be in the approximate amount of $15,965.60, annually, for a duration of 5.7 years. The ‘low’ end under such guidelines would result in an approximate annual amount of support of $13,684.80 and a duration of 5 years. An award at the ‘low’ end of the guidelines results in decreasing [appellant’s] annual income from $58,000.00 to $44,316.00 and increasing [appellee’s] annual income from $12,384.00 (minimum wage, part-time work plus social security) to $26,068.00. An award of spousal support in the amount of $13,84.80, annually, or $1,140.40 [monthly], is the approximate cost of [appellee’s] required medications and health insurance through COBRA. Also, in reviewing [appellant’s] list of monthly expenses set forth in [appellant’s] Exhibit 7 several of these expenses will cease thereby allowing [appellant] sufficient income to pay a spousal support award in the amount of $1,140.40 In regards to the tax implication of such an award, both parties, in 2009, will have a standard deduction of $5,700.00 (assuming neither remarries). [Appellant’s] income of approximately $44,000.00 will result in him being in the 25% tax bracket. [Appellee’s] income of approximately $26,068.00 will result in her also being in the 25% tax bracket. Such an award of spousal support does not change either party’s tax bracket. In addition, spousal support of $13,684.80 only costs [appellant] $10,263.60 due to the tax savings. Regarding the duration of the spousal support award, the parties, at the time of final hearing, had been married for fourteen years and four months. Based upon the testimony there was some marital discord in 2004 that was significant enough to cause [appellee] to fear that [appellant] would ‘kick her out of the marital home.’ It is the Magistrate’s Athens App. No. 09CA34 7

recommendation that spousal support be for a period of 4.7 years, or 1/3 the duration of the marriage.”

{¶10} Appellant subsequently objected to the magistrate’s decision.

Specifically, he objected to the magistrate’s failure to award appellant the

“personal items, records, mementos and clothing” that remain at the marital

residence and that were not listed on the personal property appraisal.

Appellant lists these items as: (1) diploma; (2) pictures; (3) awards; (4)

pocket watch; (5) clothing; (6) kitchen items; (7) personal papers and

records; and (8) any other personal items left at marital home. Appellant

noted that he did not request the magistrate at the final hearing to award

these items to him, but he asserted that the court is required to enter an order

that disposes of all of the parties’ personal property. He thus contended that

the magistrate should have included the items when dividing the parties’

property and that the failure to do so was improper.

{¶11} Appellant also objected to the magistrate’s property division.

He asserted that the magistrate should have awarded him the following items

as his separate property: (1) round glass table top and four cane chairs; (2)

GE tube radio; (3) love seat; (4) glass top coffee table; (5) oval wood picture

frame; (6) hanging macramé; (7) deer head; (8) end tables; (9) round

mahogany table; (10) 3-drawer dresser; (11) waterbed dresser; (12) 4-shelf

bookcase; (13) 3 gallon 1.5 horsepower air compressor; (14) one gallon Athens App. No. 09CA34 8

plastic sprayer; (15) 2 gallon shop vac; (16) ax; (17) true-temper maul; (18)

air tool; (19) grinder; (20) plastic gas cans; (21) tool box and tools; (22)

fishing tackle box; (23) steel wedges; (24) 6-inch vice; (25) bolt cutters; (26)

damaged old metal tool box and tools; (27) drill; (28) router; (29) men’s

diamond ring; (30) gold pocket watch; (31) target pistol; (32) 16-gauge rifle;

and (33) Winchester rifle.

{¶12} Appellant additionally objected to the magistrate’s spousal

support recommendation. He argued that the magistrate failed to consider

relevant statutory factors and instead improperly relied upon an invalid

mathematical formula.

{¶13} On September 1, 2009, the trial court partially sustained

appellant’s objections. Regarding appellant’s complaint that the magistrate

did not enter an order that would permit him to retrieve items from the

former marital residence, the court stated that appellant did not “file a

motion to retrieve personal property and other items from the residence”

after he was ordered to vacate the marital residence on October 18, 2007.

The court further stated that appellant “mistakenly failed to raise this issue

prior to or at the final hearing. If he had, [appellee] could have approved or

objected. The Court then could have decided [appellant’s] motion.” The

court determined that it could not “now order as [appellant] requests.” Athens App. No. 09CA34 9

{¶14} The court agreed with appellant’s objection that the

magistrate’s decision failed to award appellant certain items of separate

property as indicated on his Exhibit 18A. The court thus awarded appellant

all of the items he listed in his objections, except the following: (1) 3 gallon

1.5 horsepower air compressor; (2) ax; (3) two plastic one gallon cans; (4)

tool box and tools; (5) 6” vice; (6) ½” drill; (7) men’s diamond ring; (8) gold

pocket watch; (9) target pistol; (10) 16-guage rifle; and (11) Winchester

rifle. Although the court appeared to sustain this particular objection in

total, the court did not provide an explanation as to why it did not award

appellant the above items of property.

{¶15} The court also overruled appellant’s objections regarding

spousal support. The court determined that the magistrate properly applied

the law and the facts in recommending spousal support.

{¶16} The court thus granted the parties a divorce and adopted the

magistrate’s decision with modifications.

II.

ASSIGNMENTS OF ERROR

Appellant raises the following assignments of error:

First Assignment of Error: Athens App. No. 09CA34 10

“The trial court erred and abused its discretion by finding it could not order that appellant be permitted to retrieve personal belongings from the former marital residence.”

Second Assignment of Error:

“The trial court erred by adopting the magistrate’s decision which failed to make a determination on appellant’s claims that certain personal property was separate property either owned by appellant prior to the marriage or gifted to appellant.”

Third Assignment of Error:

“The trial court abused its discretion and committed reversible error by approving the magistrate’s utilization of a guideline calculation not adopted by law for spousal support.”

III.

ANALYSIS

A

STANDARD OF REVIEW

{¶17} The same basic standard of review governs our disposition of

appellant’s three assignments of error. An appellate court generally reviews

a trial court’s judgment under the manifest-weight-of-the-evidence

standard.1 We will not reverse a trial court’s judgment in a civil action

1 We recognize that some courts apply an abuse of discretion standard when reviewing a trial court’s judgment that adopts a magistrate’s decision. See In re T.A.F., Medina App. No. 09CA46-M, 2010-Ohio- 3000, at ¶11; Mayle v. Ohio Dept. of Rehabilitation & Correction, Franklin App. No. 09AP-541, 2010- Ohio-2774, at ¶15; In re A.B., Cuyahoga App. No. 93693,

, at ¶12; Howard v. Wilson,

,

,

; . However, we believe that the proper standard for reviewing the trial court’s judgment, whether it originates with a magistrate or not, should ordinarily be reviewed under the manifest weight of the evidence standard. Applying an abuse of Athens App. No. 09CA34 11

unless it is against the manifest weight of the evidence. A trial court’s

judgment is not against the manifest weight of the evidence so long as some

competent and credible evidence supports it. See, e.g., C.E. Morris Co. v.

Foley Construction Co. (1978),

,

,

syllabus. In determining whether a trial court’s judgment is against the

manifest weight of the evidence, a reviewing court must not re-weigh the

evidence. Seasons Coal Co. v. Cleveland (1984),

,

. Under this highly deferential standard of review, we do

not decide whether we would have come to the same conclusion as the trial

court. Amsbary v. Brumfield,

,

,

. Instead, we must uphold the judgment so long as the

record contains “some evidence from which the trier of fact could have

reached its ultimate factual conclusions.”

citing Bugg v. Fancher,

Highland App. No. 06CA12,

. Moreover, we

presume the trial court’s findings are correct because the trial court is best

able to view the witnesses and observe their demeanor, gestures, and voice

inflections and to use those observations in weighing the credibility of the

discretion standard of review simply because the case originated with a magistrate seems illogical when we would not apply this same standard of review had the case originated with the trial judge, rather than the magistrate. Furthermore, we note that it is the trial court’s decision, not the magistrate’s, that an appellate court reviews. We are thus confounded as to why two different standards should apply when reviewing a trial court’s judgment depending upon whether it originates with a magistrate or a trial judge. Moreover, although the previously-cited cases may state that they apply an abuse of discretion standard, a review of Athens App. No. 09CA34 12

testimony. See, e.g., Seasons Coal,

; Jones v. Jones,

Athens App. 07CA25,

. This means that the trier of

fact is free to believe all, part, or none of the testimony of any witness who

appears before it. Rogers v. Hill (1998),

,

; Stewart v. B.F. Goodrich Co. (1993),

,

. Furthermore, an appellate court should not substitute its

judgment for that of the trial court when the record contains competent,

credible evidence going to all of the essential elements of the case. Seasons

However, to the extent that the judgment involves a question of

law, we review the question of law independently and without any

deference. See Cooper v. Smith,

,

,

.

{¶18} In contrast to the appellate standard of review, when a trial

court reviews a magistrate’s decision, it must independently review the

magistrate’s decision. Upon review, it may adopt or reject the magistrate’s

decision in whole or in part and with or without modification. See Civ.R.

53(D)(4)(b). The court also may hear a previously-referred matter, take

additional evidence, or return the matter to the magistrate.

“In essence,

the rule is based on the principle that a trial court should have a chance to

those cases seems to suggest that they actually review the evidence to see if the evidence supports the court’s judgment—which is more akin to a manifest weight of the evidence standard. Athens App. No. 09CA34 13

correct or avoid a mistake before its decision is subject to scrutiny by a

reviewing court.” Barnett v. Barnett, Highland App. No. 04CA13, 2008-

Ohio-3415, at ¶16, quoting Cunningham v. Cunningham, Scioto 01 CA2810,

, at ¶8; see, also, Liming v. Damos, Athens App. No.

08CA34,

.

{¶19} When a party files timely objections to a magistrate’s decision,

the trial court must independently review the objections to determine

whether the magistrate properly determined the factual issues and

appropriately applied the law. Civ.R. 53(D)(4)(d). Under this de novo

standard of review, the trial court may not merely “rubber stamp” the

magistrate’s decision. Knauer v. Keener (2001),

,

; Roach v. Roach (1992),

,

. “Thus, ‘[t]he trial court should not adopt challenged

[magistrate’s] findings of fact unless the trial court fully agrees with them--

that is, the trial court, in weighing the evidence itself and fully substituting

its judgment for that of the [magistrate], independently reaches the same

conclusion.’” McCarty v. Hayner, Jackson App. No. 08CA8, 2009-Ohio-

4540, at ¶17, quoting DeSantis v. Soller (1990),

,

. Athens App. No. 09CA34 14

{¶20} With the foregoing principles in mind, we consider appellant’s

three assignments of error.

B

PROPERTY DIVISION

{¶21} Appellant’s first two assignments of error relate to the trial

court’s division of the parties’ property. In his first assignment of error,

appellant argues that the trial court erred by overruling his objection to the

magistrate’s failure to rule on his motion to retrieve his personal belongings

from the former marital residence or to otherwise award the items to him as

part of the property division. Appellant asserts that the trial court

improperly determined that because appellant failed to specifically raise this

issue at the final hearing, then he waived the right to raise the issue before

the trial court when objecting to the magistrate’s decision. Appellant

contends that the trial court’s ruling is contrary to the trial court’s duty to

independently review the magistrate’s decision and is also contrary to the

trial court’s mandatory duty under R.C. 3105.171 to classify all of the

parties’ property as either marital or separate. He basically claims that by

failing to enter any order regarding these items, the trial court failed to enter

a property division order that disposed of all of the parties’ property.

Appellant thus asserts that he is entitled to the following items of his Athens App. No. 09CA34 15

separate property that are located in the former marital residence: (1)

diploma; (2) pictures; (3) awards; (4) pocket watch; (5) clothing; (6) kitchen

items; and (7) personal papers and records.

{¶22} In his second assignment of error, appellant asserts that the trial

court erred by adopting the magistrate’s decision when the magistrate failed

to classify certain personal property as his separate property.

{¶23} A trial court generally possesses a great degree of discretion

when fashioning an equitable property division in a divorce action.

However, the court must exercise its discretion in accordance with the

governing statutes. “A failure to do so amounts to per se abuse of

discretion.”2 Liming, at ¶25.

{¶24} We have stated on several occasions that in a divorce action, a

trial court possesses a mandatory duty to classify property as either marital

or separate. See Knight v. Knight (Apr. 12, 2000), Washington App. No.

99CA27, citing, e.g., Pawlowski v. Pawlowski (1992),

,

; Goode v. Goode (1991),

,

. Once the court classifies the property, it then must award

each spouse his or her separate property. See Peck v. Peck (1994),

; R.C. 3105.171(B); Knight; Wright v. Wright (Nov. 10,

2 One might also suggest that a trial court’s failure to follow the governing statutes constitutes an error of law, subject to de novo review, that merits a reversal. Athens App. No. 09CA34 16

1994), Hocking App. No. 94CA02, overruled on other grounds Liming v.

Liming, Athens App. No. 05CA3,

. Moreover, the trial

court must make findings under R.C. 3105.171(G) “in sufficient detail to

allow for meaningful appellate review of its decision.” Knight; see, also,

Liming at ¶30.

{¶25} In the case at bar, appellant correctly observes that the trial

court’s divorce decree omits any reference to the separate property items

appellant claims remain in the former marital residence. However, as the

trial court noted, appellant did not present any evidence at the final hearing

regarding the distribution of these items. Due to this failure, the trial court

essentially determined that appellant invited any error regarding the

magistrate’s failure to award him these items and that he could not request

the trial court to award him the property.3

{¶26} The “invited error” doctrine prohibits a party who induces error

in the trial court from taking advantage of the error on appeal. State ex rel.

Fowler v. Smith (1994),

,

; Hal Artz

Lincoln-Mercury, Inc. v. Ford Motor Co. (1986),

,

, paragraph one of the syllabus; Woolridge v. Newman (June 8,

3 To the extent appellant claims that the trial court erred by finding that he failed to file a motion to retrieve property, we observe that appellant’s March 2008 motion to retrieve personal property referenced only the deer and farm equipment. The parties subsequently included the farm equipment on the personal property appraisal, and some evidence was presented at the hearing regarding the deer. Thus, it appears that the Athens App. No. 09CA34 17

2000), Pike App. No. 99CA635. It is a cardinal rule of appellate procedure

that “an appellate court will not consider any error which could have been

brought to the trial court’s attention, and hence avoided or otherwise

corrected.” Schade v. Carnegie Body Co. (1982),

,

; see, also, State ex rel. V. Cos. v. Marshall (1998),

,

. A party waives and may not raise on

appeal any error that arises during the trial court proceedings if that party

fails to bring the error to the court’s attention, by objection or otherwise, at a

time when the trial court could avoid or correct the error. Goldfuss v.

Davidson (1997),

,

; Stores Realty

Co. v. City of Cleveland Bd. of Bldg. Standards and Bldg. Appeals (1975),

,

. In the absence of a proper objection,

the party waives all but plain error. State v. Jones,

, 2001-

Ohio-57,

. In the civil context, the plain error doctrine

applies only when an error “seriously affects the basic fairness, integrity, or

public reputation of the judicial process.” Goldfuss,

-

123.

{¶27} Our court has typically held that the invited error doctrine

applies when a party fails to present evidence before a magistrate and then

magistrate considered and ruled upon the property specified in the March 2008 motion. When appellant objected to the trial court, he objected to items that he did not reference in his March 2008 motion. Athens App. No. 09CA34 18

files objections to the magistrate’s decision asserting that the magistrate

failed to consider such evidence. We have reasoned that allowing a party to

waive the presentation of evidence before a magistrate “’and, after receiving

an adverse decision from the magistrate, ask to present evidence would

frustrate the orderly administration of justice. See State v.1981 Dodge Ram

Van (1988),

,

.’” Melvin v.

Martin, Lawrence App. No. 05CA44,

, quoting

Nezhad v. Kilgore (Dec. 18, 1998), Lawrence App. No. 98CA3.

{¶28} In the case at bar, however, appellant’s failure to request the

magistrate to award him the separate property he left at the marital residence

appears to be more of an oversight than an invited error. While we would

ordinarily find that a party who fails to bring a matter to the magistrate’s

attention at the final hearing waives the right to raise the issue on appeal,

under the circumstances present in the case at bar, we do not find that

appellant’s conduct merits application of the invited error doctrine. Once

appellant realized that the magistrate’s decision omitted any reference to the

items, he timely filed an objection that requested the court award him the

separate property he left in the marital residence.

{¶29} Moreover, the trial court has an independent duty to review the

magistrate’s decision, and the trial court’s divorce decree must dispose of all Athens App. No. 09CA34 19

items of property. In the present case, the trial court’s divorce decree fails to

dispose of the items of property appellant claims constitute his separate

property that he left in the former marital residence. Additionally, it appears

that at least some of the items appellant claims he left at the former marital

residence are of a personal nature which appellee should have no legitimate

interest in keeping. Accordingly, we sustain appellant’s first assignment of

error and remand the matter to the trial court with instructions to determine

whether the items constitute marital or separate property and to enter an

appropriate order disposing of these items.4 See Girton v. Girton, Athens

App. No. 08CA30,

.

{¶30} Appellant’s second assignment of error raises a similar issue.

In his second assignment of error, appellant argues that the trial court failed

to award him the following items as his separate property: (1) men’s

diamond ring; (2) pocket watch; (3) target pistol; (4) 16-gauge rifle; and (5)

Winchester rifle. Appellant asserts that the trial court sustained his objection

relating to these items, but for some reason, did not specifically mention

these items when issuing its decree.

4 We also point out that to the extent the trial court determined that it had no legal authority to consider evidence that appellant failed to present to the magistrate, Civ.R. 53 expressly authorizes the court to hear additional evidence. See Civ.R. 53(D)(4)(b) (stating that “[a] court may * * * take additional evidence, or return a matter to a magistrate”). This rule thus provides the court with discretion as to whether to take additional evidence or refer a matter to the magistrate. In the case at bar, it is unclear whether the trial court understood its discretionary abilities under Civ.R. 53(D)(4)(b). Athens App. No. 09CA34 20

{¶31} Our review of the trial court’s entry regarding appellant’s

objections and its divorce decree reveals that the trial court sustained

appellant’s objection to the magistrate’s findings of fact regarding

appellant’s separate property. The court found that the magistrate’s decision

did not dispose of all of the property appellant claimed to be his separate

property. The court stated:

“While all the items in findings of fact 14 & 15 are found on Plaintiff’s exhibit 18A and Defendant’s exhibit FF, there are some items listed on these exhibits which are not included in findings of fact 14 & 15. The Court finds that some items were not listed in the correct finding of fact and has made the adjustment in its orders.”

{¶32} However, the court did not dispose of all of the property

appellant listed on exhibit C, which he submitted as an attachment to his

objections, namely: (1) men’s diamond ring; (2) pocket watch; (3) target

pistol; (4) 16-gauge rifle; and (5) Winchester rifle. It appears that the court

sustained appellant’s objection regarding the magistrate’s failure to include

these items, but the court inexplicably did not dispose of these items in its

order. We therefore remand this issue to the trial court for clarification.

{¶33} Accordingly, we sustain appellant’s second assignment of error.

C

SPOUSAL SUPPORT Athens App. No. 09CA34 21

{¶34} In his third assignment of error, appellant argues that the trial

court abused its discretion by adopting the magistrate’s spousal support

calculation. He asserts that the magistrate improperly employed proposed

guidelines that were never adopted and, thus, did not employ the proper

standard when awarding spousal support.

{¶35} “’It is well-settled that trial courts enjoy broad discretion in

awarding spousal support.’” Breedlove v. Breedlove, Washington App. No.

08CA10,

, at ¶9, quoting White v. White, Gallia App. No.

03CA11,

, citing Kunkle v. Kunkle (1990),

,

. Trial courts are given “wide latitude in

determining the appropriateness, as well as the amount,” of spousal support.

Bolinger v. Bolinger (1990),

,

. A

court’s decision to award spousal support will not be reversed on appeal

absent an abuse of discretion. See Bechtol v. Bechtol (1990),

,

. Under the abuse of discretion standard of review,

we must affirm the decision of the trial court unless it is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore (1983),

,

. Under this highly deferential standard of review,

we may not simply substitute our judgment for that of the trial court. In re

Jane Doe I (1991),

,

. Rather, Athens App. No. 09CA34 22

we are limited to determining whether considering the totality of the

circumstances, the trial court acted unreasonably, arbitrarily or

unconscionably. Briganti v. Briganti (1984),

,

, citing

.

{¶36} R.C. 3105.18(C)(1) provides that, in determining whether

spousal support is “appropriate and reasonable, and in determining the

nature, amount, and terms of payment, and duration of spousal support,” the

court must consider the following factors:

(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 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 that party 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; (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job Athens App. No. 09CA34 23

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.

See R.C. 3105.18(C)(1).

{¶37} When making a spousal support award, a trial court must

consider all statutory factors, and not base its determination upon any one of

those factors taken in isolation. Kaechele v. Kaechele (1988),

,

, paragraph one of the syllabus. While the trial court is

given broad discretion regarding the determination of the appropriateness

and reasonableness of an award of spousal support, it must consider the

statutory factors enumerated above and must indicate the basis for a spousal

support award in sufficient detail to enable a reviewing court to determine

that the award complies with the law. Kaechele at paragraph two of the

syllabus. But, in the absence of a request for findings of fact and

conclusions of law, Kaechele does not require the trial court to list and

comment on each factor. Brown v. Brown, Pike App. No. 02CA689, 2003-

Ohio-304, at ¶10. Kaechele and R.C. 3105.18(C) only require the trial court

to reveal the basis for its award in either its judgment entry or the record. Athens App. No. 09CA34 24

Id.; see, also, Carman v. Carman (1996),

,

.

{¶38} Appellant objected to the magistrate’s spousal support

recommendation. He asserted that the magistrate failed to consider

appellee’s Medicare eligibility and his ability to pay. The trial court

overruled this objection. The court observed that the magistrate initially

reviewed the proposed guidelines to determine a starting point for the

amount of spousal support. The trial court then observed that appellee

testified that she obtained COBRA coverage for approximately $350 per

month and stated that she attempted to obtain insurance but was advised that

she was not coverable due to a pre-existing condition. Appellee further

testified that she had not determined the impact, if any, her divorce would

have upon her social security benefits. The court summarily determined that

the magistrate’s spousal support recommendation was proper.

{¶39} On appeal, appellant argues that the trial court failed to consider

(1) appellee’s age (approximately 64 at the time of the hearing), (2) her

eligibility for Medicare and prescription coverage once appellee turned age

65; (3) the costs of appellee’s medications if insurance covered them; and

(4) appellee’s eligibility for survivor social security benefits, upon divorce,

due the death of a former spouse. Based upon our review of the record, we Athens App. No. 09CA34 25

are unable to conclude that the trial court abused its discretion when

ordering appellant to pay appellee spousal support. The record shows that

the court was well-aware of the parties’ relative ages and earning capacities,

of the length of the parties’ marriage (approximately fourteen years), and of

appellee’s health issues. The evidence shows that appellee has little, if any,

job prospects and that appellee has monthly medical expenses that she is

unable to meet based upon her social security income. Based upon these

factors, the trial court was well within its discretion to award spousal support

for 4.7 years. Although the court did not comment on each and every R.C.

3105.18 factor, in the absence of a Civ.R. 52 request for findings of fact and

conclusions of law, it had no obligation to do so.

{¶40} Furthermore, even if the magistrate improperly relied upon

proposed, but never adopted, spousal support guidelines, the trial court

independently reviewed the magistrate’s decision and nonetheless

determined that it was proper. As we stated above, we find no abuse of

discretion with the trial court’s decision to award spousal support. Both the

magistrate and the trial court considered R.C. 3105.18, and we see no danger

that the court’s decision is based upon an improper application of the law.

{¶41} Accordingly, we overrule appellant’s third assignment of error.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND THE CAUSE REMANDED. Athens App. No. 09CA34 26

Kline, J., concurring.

{¶42} I concur in judgment and opinion as to the second and third

assignments of error. But I concur in judgment only as to the first

assignment of error. While I also would sustain the first assignment of error,

I would do so for a different reason.

{¶43} In my view, the trial court’s entry never suggests that the

invited error doctrine was the basis for its refusal to consider the appellant’s

evidence. But we need not resolve that question. Unquestionably, waiver

may apply to prevent appellant from presenting evidence before the trial

court after failing to present any evidence before the magistrate. The civil

rules grant the trial court the discretion to consider evidence not considered

by the magistrate. Civ.R. 53(D)(4)(b) (“A court may hear a previously-

referred matter, take additional evidence, or return a matter to a

magistrate.”); see, also, Hubbard ex rel. Creed v. Sauline,

,

(“Use of the word ‘may’ in the statute implies that

the decision * * * lies entirely within the trial court’s discretion.”), citing

State ex rel. Hirshler v. Frazier (1980),

.

{¶44} Here, the issue presented is whether the trial court was obliged

to hear evidence that a party failed to present to the magistrate. The civil

rules afford a court of common pleas the discretion to decide whether to hear Athens App. No. 09CA34 27

new evidence or not. Therefore, in the present case, we review the trial

court’s decision on this ground for an abuse of discretion.

{¶45} The trial court’s judgment entry in this case stated: “The

Plaintiff mistakenly failed to raise this issue prior to or at the final hearing.

If he had, the Defendant could have approved or objected. The Court then

could have decided the Plaintiff’s motion. The Court cannot now order as

the Plaintiff requests.” (Emphasis added.) As such, the trial court failed to

appreciate that it had the discretion to consider new evidence. “[T]he failure

to exercise discretion in the mistaken belief it does not exist almost always

amounts to reversible error.” State v. Zukowski, Franklin App. No. 06AP-

46,

, citing Wolfe v. Wolfe (Nov. 22, 1989), Pickaway

App. No. 88-CA-18.

{¶46} Accordingly, I would sustain the first assignment of error. And

I would instruct the trial court to consider whether to exercise its discretion

to receive new evidence on remand. Athens App. No. 09CA34 28

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART AND THE CAUSE REMANDED and that the Appellee and the Appellant split the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment Only. Kline, J.: Concurs in Judgment and Opinion as to Assignments of Error II and III, and Concurs in Judgment Only as to Assignment of Error I with Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.