[Cite as Dingey v. Dingey , 2020-Ohio-5340.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

LORRAINE DINGEY : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : STEPHEN W. DINGEY : Case No. CT2020-0006 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. DB2018-0679

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 18, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JAMES R. KRISCHAK, ESQ. JOHN H. COUSINS IV 320 Main Street 32 West Hoster Street P.O. Box 190 Suite 100 Zanesville, OH 43702 Columbus, OH 43215Muskingum County, Case No. CT2020-0006 2

Wise, Earle, J. {¶ 1} Defendant-Appellant, Stephen W. Dingey, appeals the Decem ber 26, 2019 decree of divorce issued by the Court of Common Pleas of M uskingum County, Ohio, Domestic Relations Division, on the issue of spousal supp ort. Plaintiff-Appellee is Lorraine Dingey.

FACTS AND PROCEDURAL HISTORY {¶ 2} The parties were married in 1994, divorced in 2003, and r emarried in 2007. On September 10, 2018, appellee filed a complaint for di vorce. The parties have two children that are emancipated adults. {¶ 3} A final hearing was held on September 19, 2019. The sole issue was spousal support. By judgment entry filed November 25, 2019, th e trial court ordered appellant to pay appellee spousal support in the amount of $1,2 50 per month for four years. A final decree of divorce reflecting this decision was filed on December 26,

2019. {¶ 4} Appellant filed an appeal and this matter is now before t his court for consideration. Assignments of error are as follows:

I {¶ 5} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

AWARDING AN UNREASONABLE AMOUNT AND DURATION OF SPOUSAL

SUPPORT AFTER EXPRESSLY REFUSING TO CONSIDER APPELLANT'S ABILIT Y

TO PAY AND APPELLANT'S COURT-ORDERED LIABILITIES."Muskingum County, Case No. CT2020-0006 3

II {¶ 6} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BYREFUSING TO CONSIDER THE $11,272 THAT LORRAINE RECEIVED IN NONTAXABLE VEHICLE REIMBURSEMENT."

III {¶ 7} "THE TRIAL COURT ABUSED ITS DISCRETION AND RULED AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE BY REFUSING TO ALLOW DIRECT

PAYMENT OF SPOUSAL SUPPORT PURSUANT TO R.C. 3121.441." {¶ 8} The assignments of err or will be reviewed under the stand ards of abuse of discretion and manifest weight. {¶ 9} In order to find an abuse of discretion, we must determin e the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). {¶ 10} On review for manifest weight, the standard in a civil c ase is identical to the standard in a criminal case: a reviewing court is to examin e the entire record, weigh the evidence and all reasonable inferences, consider the credib ility of witnesses and determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction [decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the Supreme Court of Ohio explained the following:Muskingum County, Case No. CT2020-0006 4 Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, i f, on weighing the evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. " (Emphasis sic.)

{¶ 11} In weighing the evidence, however, we are always mindful of the presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio St .3d 328, 2012-Ohio-2179, 972 N.E.2d 517.

I {¶ 12} In his first assignment of error, appellant claims the t rial court erred and abused its discretion in the award of spousal support when it r efused to consider his ability to pay. We disagree. {¶ 13} R.C. 3105.18 governs spousal support. Subsection (C) st ates the following:

(C)(1) In determining whether spousal support is appropriate a nd reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gro ss or in installments, the court shall consider all of the following fac tors:Muskingum County, Case No. CT2020-0006 5 (a) The income of the parties, from all sources, including, bu t 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 condition s 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 ma rriage, to seek employment outside the home; (g) The standard of living of the parties established during t he marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, includ ing 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 seeki ng spousal support to acquire education, training, or job experien ce so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;Muskingum County, Case No. CT2020-0006 6 (l) The tax consequences, for each party, of an award of spous al support; (m) The lost income production capacity of either party that r esulted from that party's marital responsibilities; (n) Any other factor that the court expressly finds to be rele vant and equitable.

{¶ 14} Appellant argues the trial court refused to consider his ability to pay. At the conclusion of the case, the trial court stated, "[n]either need nor ability to pay are specific factors. It only comes in under that other - - (INAUD IBLE) - - for whatever reason the legislature never thought that your ability to pay s hould be a factor in things * * *." T. at 155. In his appellate brief at 4, appellant ackno wledges the factors under R.C. 3105.18(C) do not include the consideration of an obligor' s ability to pay, but argues "it unambiguously requires consideration of these factor s" by determining an award that is reasonable and for the sustenance and support of the obligee. {¶ 15} Although the trial court correctly pointed out that the factors do not list need or ability to pay, the trial court noted those considerati ons "come in under that other - -." Unfortunately the remainder of the trial court's s tatement is inaudible, but we presume the trial court was referencing R.C. 3105.18(C)(1)(n), "[a]ny other factor that the court expressly finds to be relevant and equitable." We do not find that the trial court refused to consider appellant's ability to pay. {¶ 16} The trial court ordered appellant to pay appellee spousa l support in the amount of $1,250 per month for four years. The trial court det ermined the length of theMuskingum County, Case No. CT2020-0006 7 marriage to be twelve years and four months. It did not take i nto account the parties' first marriage of eight years. {¶ 17} Appellant's gross pay is $86,700. T. at 122. His base salary for his position tops out at $90,000. T. at 125, 141-142. He nets app roximately $4,700 a month and lists monthly expenses of approximately $4,000. T. a t 20, 131. He has to add health insurance of about $260 to his monthly budget, but w as unsure of the cost. T. at 150-151. He retained the marital residence, but could no t provide an accurate figure as to his monthly mortgage because of a possible refinan ce. T. at 127-128, 131- 132, 146. His current monthly mortgage was $610, but he estima ted his new mortgage after refinancing would go up by $300. T. at 22-23. The stipu lated value of the home is $203,000. T. at 140. He's receiving $255,732 in assets and as suming $139,521 of debt. T. at 40; Defendant's Exhibit 1. One hundred thousand d ollars of that debt is the remaining mortgage on the home. Id. {¶ 18} Appellee's gross pay is $59,669 which includes $13,300 f or a vehicle maintenance allowance. T. at 55-56, 69. She nets approximatel y $4,300 a month and lists monthly expenses of approximately $6,000 which includes h er vehicle maintenance expenses. T. at 65, 70. Her expenses include an estimated mor tgage payment and related costs on a "relatively conservative" home ($144,900) un til she's able to actually purchase a home of her own. T. at 57-60. She was currently sl eeping on the couch of her mother's home. T. at 57-58. Appellant will pay appellee $ 32,700 for her nonmarital interest in the marital home which she hopes to use as a down p ayment. T. at 45, 86. She will not receive any other d irect cash from the property se ttlement. Id. She's receiving $97,513 in assets and assuming $51,608 of debt. T. a t 45; Defendant's

Exhibit 1.Muskingum County, Case No. CT2020-0006 8 {¶ 19} In his appellate brief at 7-8, appellant argues the tria l court "imposed extreme financial hardship" on him to the exclusive benefit of appellee. He will have to operate at a net monthly deficit [-$550: $4,700 (net pay) minus $4,000 (expenses) minus $1,250 (spousal support)]. {¶ 20} In Daniels v. Daniels, 5th Dist. Muskingum No. CT17-0002, 2017-Ohio6976, ¶ 18, this court stated the following:

Appellant argues the trial court erred in awarding spousal sup port because her monthly net income will be a deficit. However, sim ply because spousal support creates a negative cash flow for one of the parties does not necessarily lead to a finding of an abuse of d iscretion. Compton v. Compton , 5th Dist. Stark No. 2014CA00207, 2015-Ohio-4327; Taylor v. Taylor , 5th Dist. Stark No. 2013CA00130, 2013-Ohio-4958. Further, a trial court must consider all statutory factors when making a spousal support award and not base its determination upon any o ne factor

taken in isolation. Kaechele v. Kaechele , 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988). This is just one factor the trial court could con sider in making the determination as to spousal support.

{¶ 21} Even receiving $1,250 a month in spousal support, appell ee will also have to operate at a net monthly deficit [-$450: $4,300 (net pay) mi nus $6,000 (expenses) plus $1,250 (spousal support)]. Appellant is not contesting ap pellee's expenses. {¶ 22} The parties voluntarily agreed to the property settlemen t. Appellant's asset to debt ratio is approximately 54% and appellee's is 53%.Muskingum County, Case No. CT2020-0006 9 {¶ 23} In the decree of divorce, the trial court specifically s tated it considered all

the relevant factors of R.C. 31 05.18 in determining spousal sup port of $1,250 per month for four years to be reasonable and appropriate. Upon review o f the record, we do not find an abuse of discretion by the trial court. The parties wi ll both operate under a net monthly deficit in light of their respective monthly expenses. The trier of fact is vested with the authority to weigh the evidence and assess the credibi lity of the witnesses as the trier of fact "has the best opportunity to view the demeano r, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). The trial cou rt's award "represents an effort to equalize the parties' income and liabi lities." Compton v. Compton, 5th Dist. Stark No. 2014CA00207, 2015-Ohio-4327, ¶ 20. While appellant will maintain a lifestyle similar to that during the marriage, appellee sleeps on a couch in

her mother's home. {¶ 24} In addition, we note the trial court retained jurisdicti on over the amount and duration of spousal support should there be any change in c ircumstances of the parties. {¶ 25} Upon review, we find the trial court did not err nor abu se its discretion in its award of spousal support to appellee. {¶ 26} Assignment of Error I is denied.

II {¶ 27} In his second assignment of error, appellant claims the trial court erred and abused its discretion in the award of spousal support when it refused to consider monies appellee received in non-taxable vehicle reimbursement. We disagree.Muskingum County, Case No. CT2020-0006 10 {¶ 28} In determining appellee's income, the trial court found the following in the

decree of divorce:

The Court finds that Plaintiff is currently employed as a rura l mail carrier with the U.S. Postal Service earning $46,326.00 per yea r plus an employee maintenance allowance for a total of approximately $59 ,600.00. The Court finds the maintenance allowance is utilized by Plaint iff to maintain her vehicle and supply fuel for that vehicle so she ma y carry out her duties as a rural mail carrier. Therefore, the Court finds Plaintiff's earning capacity to be $46,326.00 and finds that this represent s her normal earnings ability.

{¶ 29} Appellant argues R.C. 3105.18(C)(1)(a) requires a trial court to consider "income of the parties from all sources." In his appellate bri ef at 9, appellant argues this

includes non-taxable income such as the vehicle reimbursement a s "[t]his is undeniably a benefit that warrants some consideration." "Although courts can debate how much weight it should receive, it is nevertheless arbitrary to exclu de any consideration of the reimbursement from a spousal support calculation." {¶ 30} Clearly the trial court did not exclude any consideratio n of the reimbursement. The trial court considered it and specifically found appellee used the maintenance allowance "to maintain her vehicle and supply fuel for that vehicle so she may carry out her duties as a rural mail carrier." {¶ 31} Appellee testified she was a rural mail carrier and used her own vehicle to service her route. T. at 46, 49. She stated maintaining her v ehicle "will exceed theMuskingum County, Case No. CT2020-0006 11 employee maintenance allowance" she receives of approximately $ 13,300. T. at 51. She explained, "I've already reached almost 12,000 in those exp enses and I expect to be purchasing tires - - it will be around a thousand dollars - - and also oil change and brakes, other maintenance expenses." Id . As of September, she had incurred $11,258.50 in expenses for vehicle maintenance and still had th ree months to go in the year. T. at 52-55; Plaintiff's Exhibit D. She delivers mail o n rural roads that often are graveled, not blacktopped, and therefore her tires wear faster. T. at 62-63. She is on the road five days a week, seven hours a day, stopping and star ting the whole way. T. at 66. She goes through two sets of tires a year. T. at 91-92

. {¶ 32} The $13,300 amount for vehicle maintenance is a wash and does not even cover all of her expenses. We note in our discussion of A ssignment of Error I above, the $13,300 was included in appellee's overall salary, a long with her monthly expenses which included her vehicle maintenance, plus her spous al support award, and she still will operate at a deficit. {¶ 33} Upon review of the trial court's decision and the eviden ce presented, we find the trial court considered the monies appellee received in non-taxable vehicle

reimbursement and did not err nor abuse its discretion in relat ion to its determination on spousal support. {¶ 34} Assignment of Error II is denied.

III {¶ 35} In his third assignment of error, appellant claims the t rial court abused its discretion and ruled against the manifest weight of the evidenc e by refusing to allow direct payment of spousal support to appellee. We disagree.Muskingum County, Case No. CT2020-0006 12 {¶ 36} In the divorce decree, the trial court ordered that the "spousal support payment, plus 2% processing charge shall be made to the Ohio Ch ild Support Payment Central * * * as administered through the Muskingum County Chil d Support Enforcement Agency by income withholding at the party's place o f employment." {¶ 37} In his appellate brief at 10, appellant argues the trial court is subjecting him "to an unnecessary two-percent processing charge, when ther e was no evidence" that he would fail to comply with a direct payment order. {¶ 38} R.C. 3121.441(A) provides in the event of a spousal supp ort award, "the

court may permit the obligor to make the spousal support payments direct ly to the obligee" instead of to the department of job and family service s. (Emphasis added.) The decision is clearly discretionary. There is no case law to suggest that a trial court must conduct an analysis of an obligor's possible failure to co mply with a direct payment

order. {¶ 39} Upon review, we do not find that the trial court abused its discretion in exercising its discretion under the statute. We do not find an y manifest miscarriage of justice. {¶ 40} Assignment of Error III is denied.Muskingum County, Case No. CT2020-0006 13

{¶ 41} The judgment of the Court of Common Pleas of Muskingum C ounty, Ohio, Domestic Relations Division is hereby affirmed. By Wise, Earle, J. Gwin, P.J. and Wise, John, J. concur.

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