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Hannah v. Hannah8/11/2000
s part-time job and the Court further finds that the Plaintiff has failed to provide the Court with ample credible evidence to substantiate that he is physically unable to obtain full-time employment. Taking into account the Plaintiff's relatively young age and his past work experience, it appears only reasonable that the Plaintiff could obtain a job similar in nature to the pay scale of the Defendant, if he chose to do so, however, that choice must be the Plaintiff's." (Judgment and Decree, pp. 13-14).
It was Hebern's burden to demonstrate why an equal division of his retirement benefit would be inequitable. We cannot fault his desire for a rest from labor after many years of hard work. However, that desire is subordinated by R.C. 3105.171 to the equal division which Division (C)(1) of that section generally requires. The trial court concluded that it could not vary from the requirement in this case, finding that Hebern had failed to present evidence to support a variance. We are unable to find that the court abused its discretion in that regard on the standard set out in Blakemore, supra.
The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR THE TRIAL COURT FAILED TO AWARD APPELLANT SPOUSAL SUPPORT IN CONTRAVENTION OF OHIO REVISED CODE SECTION 3105.18.
R.C. 3105.18 authorizes a domestic relations court to award spousal support payable by one party to another after their marital and separate properties are divided. Division (C)(1)(a) through (n) of that section sets out "factors" the court must consider in determining whether spousal support is appropriate. The court's decision whether to order spousal support will not be reversed on appeal absent an abuse of discretion.
In support of this assignment of error, Hebern reviews the evidence in this case relevant to the statutory factors. Though several of his points are well-made, and might have persuaded this court to order spousal support, we do not view the issue de novo. Our function is to determine whether the trial court's decision to deny Hebern's request for spousal support arises from an attitude that is unreasonable, arbitrary, or unconscionable. Blakemore, supra.
The thread running through the statutory factors is the need of one party for spousal support as against the ability of the other party to pay it. Fletcher v. Fletcher (Aug. 24, 1992), Montgomery App. No. 12942, unreported, affirmed (1994), 68 Ohio St.3d 464, 628 N.E.2d 1343. Seagraves v. Seagraves (April 19, 1996), Montgomery App. No. 15588, unreported. Hebern suggests that Royetta has an ability to pay because her annual income of $37,300 is almost double his annual income of $19,300. However, he does not say how his needs will go unmet if he does not receive spousal support. He merely argues, instead, that in view of his years of hard work and poor health, it is inequitable to require him to earn additional monies to meet his needs. He also argues that, were the income situations of the parties reversed, he would probably be required to pay support to Royetta.
Hebern's "sauce for the goose is sauce for the gander" argument resonates with our experience in reviewing spousal support issues, but it doesn't demonstrate that the trial court abused the discretion reposed in it by R.C. 3105.18. The court is required by division (C)(1)(b) of that section to consider " he relative earning abilities of the parties." The court did that when it found that "it is realistic to assume that (Hebern) does have a relatively greater earning ability than he enjoys (sic)." (Decree, pp. 15-16). Hebern disputes that finding, but he fails to explain how it was unreasonable for the court to arrive at it on the reco
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