[Cite as Wormsley v. Wormsley, 2014-Ohio-3086.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

JIMMIE WORMSLEY, 

 PLAINTIFF-APPELLEE, CASE NO. 9-14-04 

 v. 

ROBERT WORMSLEY, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion County Common Pleas Court 

Family Division 

Trial Court No. 2013 DR 0120 

Judgment Affirmed 

Date of Decision: July 14, 2014 

 

APPEARANCES: 

 

Robert C. Nemo for Appellant 

Larry Heiser for Appellee 
Case No. 9-14-04 

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SHAW, J. 

{¶1} Defendant-appellant, Robert Wormsley, Jr. (“Robert”), appeals the 

January 2, 2014 judgment of the Marion County Court of Common Pleas, Family 

Division, granting the complaint for divorce filed by plaintiff-appellee, Jimmie 

Wormsley (“Jimmie”). Robert assigns as error the trial court’s spousal support 

award to Jimmie in the amount of $1,500 a month until the death of either party or 

upon Jimmie’s remarriage. Robert also appeals the trial court’s order requiring 

him to pay Jimmie’s attorney’s fees. 

{¶2} The parties were married on June 7, 1975, and had two children who 

are now emancipated adults. Robert worked outside the home during the marriage 

while Jimmie sporadically worked part-time jobs but primarily remained in the 

home tending the children and household affairs. 

{¶3} On May 7, 2013, Jimmie filed for divorce after almost thirty-eight 

years of marriage. Robert subsequently filed an answer and the case proceeded to 

discovery. 

{¶4} On October 31, 2013, the parties filed a stipulation which addressed 

most of the issues in the case. The only matters that remained to be litigated were 

Jimmie’s requests for spousal support and payment of her attorney’s fees by 

Robert, and the trial court’s determination of which party was entitled to keep 

certain gold chains acquired during the marriage. The trial court held a hearing on 
Case No. 9-14-04 

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these outstanding issues, where each party presented evidence in support of their 

case. 

{¶5} At the hearing, Robert testified that he is fifty-six years old and has a 

high school diploma as the highest level of his education. Robert stated that he 

has been employed at General Mills for twenty-two years and works as a bag 

packer packing fifty pound bakery mixes. Prior to General Mills, Robert worked 

for the Wilson-Bohannon Block Company for ten months and Quaker Oats for 

almost fourteen years. Robert testified that he consistently worked overtime—i.e., 

six or seven eight hour shifts a week—throughout the duration of the parties’ 

marriage. Robert also testified that he worked continuously during the marriage 

with the exception of approximately one year when he lost his job at General Mills 

in June 2012. Robert explained that he was terminated from his employment due 

to failing a drug test. However, after participating in arbitration, Robert was 

rehired at General Mills in August of 2013. 

{¶6} Robert also admitted that in the fall of 2012 he liquidated his 401(k), 

worth approximately $45,000, without Jimmie’s knowledge and spent all but 

$5,000.1

 Robert agreed that Jimmie should be awarded some spousal support. He 

testified that $600 or $700 seemed to be a “fair” amount. (Tr. 11). Robert 

submitted paychecks dating from August 22, 2013 to September 19, 2013 as 

 

1

 In the stipulated division of assets submitted by the parties, Jimmie was given the martial home free and 

clear of any claims by Robert and unencumbered by any liens or debts. At the time of the hearing, the 

marital home was valued at $45,000—approximately the same amount as the 401(k) liquidated by Robert. 
Case No. 9-14-04 

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evidence of his income. His paychecks demonstrated that he earned a base pay of 

$20.44 per hour and worked a significant amount of overtime at $30.66 per hour. 

{¶7} Jimmie testified that she is fifty-eight years old and also has a high 

school diploma as the highest level of her education. Jimmie recalled that she 

worked during the beginning of the marriage at a child care center where their 

oldest son also attended. However, their son began to experience health problems 

which required her to leave her job at the child care center. Jimmie explained that 

throughout the marriage she occasionally had part-time jobs working at minimum 

wage. Jimmie testified that since April 6, 2012, she has been employed as a 

department manager at Rural King earning $8.66 per hour. Jimmie also submitted 

numerous paychecks from her employer as evidence of her income, which 

demonstrated that she typically worked between seventy and seventy-nine hours in 

a two week pay period. Jimmie stated that her employer does not always give her 

forty hours a week despite the fact that she would be willing to work those hours. 

{¶8} Jimmie testified that prior to Robert losing his job in June of 2012 she 

received health insurance benefits through Robert’s employment, which covered 

the cost of the medications she takes on a regular basis. She explained that she is a 

diabetic and suffers from high blood pressure and high cholesterol, and that she 

will need to purchase health insurance benefits after the divorce is finalized. She 

also testified that she received no financial support from Robert after he regained 
Case No. 9-14-04 

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his job at General Mills in August of 2013. Jimmie confirmed that she was 

seeking spousal support that would serve to equalize the income between the 

parties. 

{¶9} Each party provided similar testimony regarding their standard of 

living during the marriage. It was very seldom that they dined at restaurants. 

They lived in a modestly priced home, drove older model vehicles, and took 

vacations when their children were young, but never as a couple. 

{¶10} On November 8, 2013, the trial court issued a ruling on the contested 

issues remaining between the parties. The trial court calculated the parties’ 

monthly income and expenses based on the evidence submitted. In assessing 

Robert’s income, the trial court averaged the overtime hours from the five 

paychecks he submitted as evidence at the hearing. The trial court “then 

annualized his overtime earnings based on the average number of hours at $30.66” 

and added this number to his base earning wages of $20.44 per hour to derive an 

annual income for Robert of $56,796.63. (Doc. No. 38 at 4). The trial court 

attributed an annual income of $16,494.02 to Jimmie based on the evidence she 

submitted at the hearing. 

{¶11} The trial court discussed the relevant factors for determining whether 

spousal support is appropriate under R.C. 3105.18(A) and (C). Specifically, the 

trial court stated the following: 
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The Court finds that an equalization of incomes is a reasonable 

and appropriate approach for this long term marriage given the 

facts and circumstances and the earning abilities of the parties. 

The Court therefore finds that an award of spousal support of 

$1,500.00 per month is reasonable and necessary. The Court 

shall retain jurisdiction to modify the amount of spousal support 

only. 

(Doc. No. 38 at 4). 

{¶12} In the same ruling, the trial court discussed a billing statement from 

Jimmie’s attorney reflecting fees in the amount of $2,450. The trial court found 

the attorney’s fees to be both reasonable and necessary and ordered Robert to be 

responsible for paying the fees within sixty days of the date of the final divorce 

decree. 

{¶13} On January 2, 2014, the trial court issued its Judgment Entry of 

Divorce incorporating its prior ruling on the spousal support and attorney’s fees 

matters. With respect to the spousal support payments, the trial court specifically 

stated in its Judgment Entry that: 

The obligation of [Robert] to pay such payments to [Jimmie] * * 

* shall end upon the following events (whichever occurs first): 

the death of either party or [Jimmie’s] remarriage. The Court 

shall retain jurisdiction over the amount of spousal support only. 

(Doc. No. 39 at 4). 

{¶14} Robert subsequently filed this appeal, asserting the following 

assignments of error. 
Case No. 9-14-04 

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ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ABUSED ITS DISCRETION BY 

AWARDING APPELLEE $1,500.00 PER MONTH IN 

SPOUSAL SUPPORT. 

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

ORDERED APPELLANT TO PAY SPOUSAL SUPPORT FOR 

AN INDETERMINATE PERIOD OF TIME. 

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ABUSED ITS DISCRETION IN 

AWARDING ATTORNEY’S FEES TO APPELLEE. 

First Assignment of Error

{¶15} In his first assignment of error, Robert challenges the trial court’s 

award of $1,500 in spousal support. Even though Robert conceded at the hearing 

that Jimmie is entitled to some spousal support, he disputes on appeal the amount 

the trial court awarded. 

{¶16} In matters relating to spousal support, the “trial court is provided 

with broad discretion in deciding what is equitable upon the facts and 

circumstances of each case.” Kunkle v. Kunkle, 51 Ohio St.3d 64, 67 (1990). 

Thus, a spousal support decision is generally left to a trial court’s discretion, 

subject to the statutory factors. See R.C. 3105.18(C). “A reviewing court cannot 

substitute its judgment for that of the trial court unless, considering the totality of 

the circumstances, the trial court abused its discretion.” Kunkle at 67. 
Case No. 9-14-04 

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{¶17} R.C. 3105.18(B) allows trial courts, upon a party’s request and after 

property distribution, to award reasonable spousal support. R.C. 3105.18(C) 

provides a list of factors for the trial court to consider in awarding spousal support 

and states the following: 

(1) In determining whether spousal support is appropriate and 

reasonable, and in determining the nature, amount, and terms of 

payment, and duration of spousal support, which is payable 

either in gross or in installments, the court shall consider all of 

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; 
Case No. 9-14-04 

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(i) 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; 

(j) 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; 

(k) The tax consequences, for each party, of an award of 

spousal support; 

(l) The lost income production capacity of either party that 

resulted from that party’s marital responsibilities; 

(m) Any other factor that the court expressly finds to be 

relevant and equitable. 

(2) In determining whether spousal support is reasonable and 

in determining the amount and terms of payment of spousal 

support, each party shall be considered to have contributed 

equally to the production of marital income. 

{¶18} In the instant case, Robert contends that the trial court erred when it 

included his overtime hours and pay in its calculation of his annual income and 

when it attempted to equalize the parties’ incomes based on that figure. Robert 

argues that the trial court should have limited its calculation of his annual income 

to his base pay of $20.44 per hour at forty hours a week and should not have 

considered his overtime because the hours are “not guaranteed.” Robert also 

challenges the trial court’s calculation of his annual income on the basis that it was 
Case No. 9-14-04 

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drawn from a “small sample” of five paychecks from August 22, 2013 to 

September 19, 2013. 

{¶19} First, we are not sympathetic to Robert’s complaint regarding the 

trial court’s use of these particular paychecks to determine his annual income 

given the fact that these five paychecks are the only documentation of his income 

that he chose to submit at the hearing. Second, both Robert and Jimmie testified 

that Robert consistently worked overtime hours throughout the course of the 

marriage. Therefore, we do not find the trial court abused its discretion by 

including a figure for overtime wages in calculating Robert’s annual income. 

{¶20} We also note that “although a trial court is not required to equalize 

incomes, it is not prohibited from doing so where such a result is reasonable and 

equitable.” Arthur v. Arthur, 3rd Dist. No. 17–11–28, 2012–Ohio–1893, ¶ 33. In 

its November 8, 2013 ruling on the issue of spousal support, the trial court listed 

several of the factors in R.C. 3105.18(C)(1), including the parties’ current 

incomes, their relative earning abilities, their ages, Jimmie’s health insurance 

expenses, Robert’s retirement benefits, the duration of the marriage, their standard 

of living during the marriage, and the fact that Jimmie was mainly a stay-at-home 

mother and homemaker who has accrued no retirement benefits from her minimal 

employment outside the home. (Doc. No. 38). While the parties’ annual incomes 

are similar after the trial court’s spousal support award, it is evident from the 
Case No. 9-14-04 

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record that the trial court properly considered the statutory factors in calculating 

the amount of spousal support. Consequently, we cannot find the trial court’s 

spousal support award to be an abuse of discretion under the circumstances. 

Second Assignment of Error

{¶21} In his second assignment of error, Robert argues that the trial court 

erred in ordering him to pay spousal support until the death of either party or until 

Jimmie remarries insofar as the trial court retained jurisdiction to modify the 

amount of the support only. The Supreme Court of Ohio has held “that except in 

cases involving a marriage of long duration, parties of advanced age or a 

homemaker-spouse with little opportunity to develop meaningful employment 

outside the home, where a payee spouse has the resources, ability and potential to 

be self-supporting, an award of sustenance alimony should provide for the 

termination of the award, within a reasonable time and upon a date certain, in 

order to place a definitive limit upon the parties’ rights and responsibilities.” 

Kunkle v. Kunkle, 51 Ohio St.3d 64, 69 (1990). 

{¶22} Here, the parties were married for thirty-eight years. Jimmie is fiftyeight years old and has a high school education. With the exception of a few parttime jobs, Jimmie did not earn an income until the last year of the marriage when 

she separated from Robert. Even though she is currently employed, she is making 

a low wage of $8.66 an hour with no benefits. In setting forth the spousal support 
Case No. 9-14-04 

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award, the trial court specifically noted the length of the marriage and the earning 

abilities of the parties. Under these circumstances, we find no abuse of discretion 

in the trial court setting an indefinite period of time for Jimmie to receive spousal 

support. Accordingly, Robert’s second assignment of error is overruled. 

Third Assignment of Error

{¶23} In his third assignment of error, Robert argues that the trial court 

erred in ordering him to be responsible for paying Jimmie’s attorney’s fees. “ ‘An 

award of attorney’s fees in a domestic relations action is committed to the sound 

discretion of the trial court.’ ” Cichanowicz v. Cichanowicz, 3d Dist. Crawford 

No. 3–13–05, 2013–Ohio–5657, ¶ 92, quoting Flowers v. Flowers, 10th Dist. 

Franklin No. 10AP 1176, 2011–Ohio–5972, ¶ 21, citing Stuart v. Stuart, 144 Ohio 

St. 289 (1944) (additional citation omitted). “This court will not reverse an award 

of attorney fees absent a finding that the trial court abused its discretion.” Id., 

citing Stuart. 

{¶24} On May 7, 2013, Jimmie filed a motion for attorney’s fees requesting 

the trial court order Robert to pay her attorney’s fees pursuant to R.C. 

3105.73(A).2

 In her motion, Jimmie highlighted the parties’ income disparity and 

claimed Robert had the ability to pay her attorney’s fees. At the hearing, Jimmie 

 

2

 R.C. 3105.73(A) states: “ In an action for divorce, dissolution, legal separation, or annulment of marriage 

or an appeal of that action, a court may award all or part of reasonable attorney’s fees and litigation 

expenses to either party if the court finds the award equitable. In determining whether an award is 

equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal 

support, the conduct of the parties, and any other relevant factors the court deems appropriate.” 
Case No. 9-14-04 

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submitted a billing statement of her attorney’s fees as an exhibit. The parties 

agreed the fees were reasonable and necessary, however Robert maintained that he 

should not be held responsible for the payment of Jimmie attorney’s fees. 

{¶25} In its November 8, 2013, ruling ordering Robert to pay Jimmie’s 

attorney’s fees, the trial court specifically found the $2,450 in fees reflected on the 

billing statement provided by Jimmie’s attorney to be reasonable and necessary. 

Nor can we find anything in the record to indicate that the award of attorney’s fees 

was unfounded, contrary to law, or otherwise improper. Accordingly, we do not 

find the trial court abused its discretion in ordering Robert to pay Jimmie’s 

attorney’s fees. Therefore, Robert’s third assignment of error is overruled. 

{¶26} For the foregoing reasons, the assignments of error are overruled and 

the judgment is affirmed. 

 Judgment Affirmed 

WILLAMOWSKI, P.J. and PRESTON, J., concur. 

/jlr