[Cite as Rees v. Rees, 2012-Ohio-2129.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

DAVID WILLIAM REES, 

 PLAINTIFF-APPELLEE, CASE NO. 8-11-17 

 v. 

MARIBEL AGUILAR REES, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Logan County Common Pleas Court 

Domestic Relations Division 

Trial Court No. DR10-03-0026 

Judgment Affirmed 

Date of Decision: May 14, 2012 

 

APPEARANCES: 

April H. Marlett for Appellant 

Daniel L. Bennett for Appellee 
Case No. 8-11-17 

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WILLAMOWSKI, J. 

{¶1} Defendant-Appellant, Maribel Aguilar Rees (“Maribel”), appeals the 

judgment of the Logan County Court of Common Pleas, Domestic Relations 

Division, granting a divorce from Plaintiff-Appellee, David William Rees 

(“David”). On appeal, Maribel contends that the trial court erred when it failed to 

award her spousal support. For the reasons set forth below, the judgment is 

affirmed. 

{¶2} David and Maribel were married on November 22, 2002, and have one 

child, a daughter, who was born in February of 2006 and was four-years old when 

the David filed his Complaint for Divorce on March 9, 2010. A hearing was held 

before the magistrate in October of 2010, and the magistrate heard testimony from 

the parties and the guardian ad litem (“GAL”). The primary issue before the court 

involved the allocation of parental rights and responsibilities. Both parties wanted 

“custody” of their daughter. The parties did not own any real property, they had 

no retirement accounts, and there were very few assets other than their personal 

property. 

{¶3} On December 16, 2010, the magistrate issued her decision, 

recommending that a divorce should be granted on the ground of incompatibility; 

there should be no award of spousal support to either party and the court should 

not retain jurisdiction; each party should be awarded their own personal property 
Case No. 8-11-17 

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and be responsible for any debts in their name; David was to pay Maribel one-half 

of the parties’ 2009 tax refund of $3,000; and David was to be designated the 

residential parent of the child, with visitation as agreed, or according to the local 

rules if there was no agreement. Neither party was to remove the child from the 

State of Ohio without the permission of the other party or the trial court. 

{¶4} Although the GAL had recommended that Maribel be designated as 

the residential parent “as long as she resides in Ohio,” the GAL had expressed 

concerns that Maribel intended to return to Texas with the child and was not sure 

that Maribel understood the importance of complying with the court’s orders to 

allow David to have visitation. Maribel had left the jurisdiction with the child 

previously, and only allowed David sporadic contact with the child while she was 

in Texas. The trial court disagreed with the GAL’s conclusion, finding that 

enforcement of the condition of Mirabel remaining in Ohio would be difficult and 

that the best interest of the child was met by designating David as residential 

parent. 

{¶5} David was a forklift driver, earning about $14.35 per hour. (Oct. 14, 

2010 Tr., p. 4) Mirabel worked two part-time restaurant jobs, earning $7.00 and 

$7.30 per hour respectively. For purposes of the child support worksheet, the trial 

court imputed minimum wage, at 30 hours per week to Mirabel, with the 

calculations showing that she should pay David $157.01 per month. However, the 
Case No. 8-11-17 

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magistrate recommended a deviation, with Mirabel paying $0 child support for a 

period of one year. (Mag. Dec., p. 4) David would be permitted to petition the 

trial court for support after that period. The magistrate stated that “[t]he deviation 

should be granted because of the differences in the parties’ incomes and because 

Maribel needs sufficient funds to provide for [the child] during visitation.” (Id.) 

David was to be responsible for obtaining health insurance for the child and would 

be entitled to the tax exemption for as long as the support deviation was in place. 

(Id., p. 5) 

{¶6} Mirabel filed objections to the magistrate’s decision. On June 14, 

2011, the trial court overruled Mirabel’s objections and granted the final decree of 

divorce, based upon all of the recommendations set forth in the magistrate’s 

decision. Mirabel filed a request for separate findings of fact and conclusions of 

law, tolling the time for appeal. On September 16, 2011, the trial court issued its 

final judgment entry, finding that the request for findings was time-barred because 

of non-compliance with Civ.R. 53(D)(3)(a)(ii). The trial court issued a general 

finding, adopting the findings of fact from the magistrate’s decision, and issuing a 

summary of the conclusions of law and its holdings from its June 14, 2011 

decision. 

{¶7} Mirabel timely appeals this decision, raising the following assignment 

of error for our review. 
Case No. 8-11-17 

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Assignment of Error 

The trial court erred in not awarding spousal support to 

Appellant Maribel Rees 

{¶8} In her sole assignment of error, Maribel maintains that the trial court 

should have awarded Mirabel spousal support due to the length of the marriage 

and the disparity of the parties’ incomes. Mirabel states that she requested an 

award of spousal support in her pretrial statement and through her testimony at the 

final hearing, and that the trial court erred in not granting spousal support. 

Mirabel asserts that several of the R.C. 3105.18 factors support an award of 

spousal support, including: the fact that David was earning almost double what 

Mirabel earned; Mirabel’s earning ability might be limited because she had only 

been in the United States for eleven years and was not fluent in English; the 

parties had been married for over eight years; and, that Mirabel would be unable to 

continue to have the standard of living that the parties had established during the 

marriage. 

{¶9} Trial courts are granted broad discretion concerning awards of spousal 

support. Tremaine v. Tremaine, 111 Ohio App.3d 703, 706 (2d Dist.1996); 

Siekfer v. Siekfer, 3d Dist. No. 12-06-04, 2006-Ohio-5154, ¶ 15. Accord, Kunkle 

v. Kunkle, 51 Ohio St.3d 64, 67 (1990). Their orders will not be reversed on 

appeal absent an abuse of that discretion. Id. An abuse of discretion is more than 

an error in judgment; it signifies that the trial court's attitude was unreasonable, 
Case No. 8-11-17 

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arbitrary, or unconscionable. Timberlake v. Timberlake, 192 Ohio App.3d 15, 

2011-Ohio-38, ¶ 9 (3d Dist.), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219 (1983). A trial court will be found to have abused its discretion when its 

decision is contrary to law, unreasonable, not supported by the evidence, or 

grossly unsound. Bruce v. Bruce, 3d Dist. No. 9-10-57, 2012-Ohio-45, ¶ 13, citing 

State v. Boles, 187 Ohio App.3d 345, 2010–Ohio–278, ¶ 17–18 (2d Dist). citing 

Black’s Law Dictionary (8 Ed.Rev.2004) 11. When applying an abuse-ofdiscretion standard, an appellate court may not substitute its judgment for that of 

the trial court. Blakemore; Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990). 

{¶10} R.C. 3105.18 governs the trial court's award of spousal support and 

requires the court to consider fourteen factors set forth in R.C. 3105.18(C)(1) 

when determining whether spousal support is appropriate and reasonable, and 

when determining the nature, amount, terms of payment, and duration of the 

support. Strasburg v. Strasburg, 3d Dist. No. 2-10-12, 2010-Ohio-3672, ¶ 26; 

Kunkle, supra. The factors are as follows: 

(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; 
Case No. 8-11-17 

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(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 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. 

R.C. 3105.18(C)(1)(a)-(n). 

{¶11} The burden of establishing the need for spousal support rests with the 

party that is seeking such support. Rymers v. Rymers, 11th Dist. No. 2009-L-160, 
Case No. 8-11-17 

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2010-Ohio-6439, ¶ 38; Stetler v. Stetler, 6 Ohio App.3d 29 (3d Dist.1983) (while 

there is no general burden of proof under R.C. 3105.18, each side has the burden 

of going forward with evidence as to any factor which it wants considered, 

bringing forth facts tending to prove its version of the manner in which such 

factors should be applied). “A party cannot complain if a listed factor [for 

spousal support] has not been considered on which neither party offered any 

evidence.” Stetler at 29. 

{¶12} In deciding against an award of spousal support, the magistrate stated 

that “[t]he issues of property division and spousal support were really glossed 

over. * * * Spousal support was discussed briefly, but this Magistrate would have 

to infer much from the testimony, which makes such award problematic.” (Mag. 

Dec., pp. 3-4) The record supports the magistrate’s finding that no arguments or 

evidence were set forth to support an award of spousal support to Maribel. In 

Mirabel’s September 2, 2010 pretrial statement, she merely states: “Plaintiff and 

Defendant were married November 22, 2002. [Mirabel] is requesting spousal 

support.” No reasons were given, nor was there any evidence provided why 

Mirabel would need to receive spousal support. At trial, the testimony on the 

subject was limited to: 

Q. Okay. Are you also asking for spousal support? 

A. Yes. 
Case No. 8-11-17 

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(Tr., p. 52.) Thereafter, the testimony turned to the fact that Mirabel was not 

personally receiving any government benefits because she did not have a social 

security number. 

{¶13} Mirabel did nothing more than merely make an unsupported request 

for spousal support. We do not find that the trial court abused its discretion when 

it did not attempt to “infer” that she was entitled to support. And, even if we were 

to do so, we do not find that the trial court’s decision was unreasonable or 

arbitrary based on the specific facts and circumstances that were before the trial 

court in this case. 

{¶14} Although Mirabel claims she should be awarded spousal support 

because of the length of the marriage, eight years is not necessarily a marriage of 

long duration. David was earning more than Mirabel, but his income of less than 

$30,000 per year was not excessive, especially since he will have the added 

expenses and responsibilities of caring for their daughter, while receiving no child 

support. Futhermore, David was 53 years old at the time of the hearing, and was 

much closer to retirement than Mirabel, who was only 35. Neither party had any 

retirement savings. There was no evidence that either party suffered from any 

physical, mental or emotional conditions that would preclude them from working, 

and there was no testimony concerning their education and training. 
Case No. 8-11-17 

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{¶15} David testified that he only had about $200 in his checking account, 

he did not own any real property, he was driving a 1997 vehicle, and his only 

personal property consisted of his guitars. Mirabel did not present any evidence 

on how her standard of living would change from during her marriage. 

{¶16} On appeal, Mirabel wants us to find that the trial court should have 

inferred that she would be hindered in her ability to find employment because she 

was not fluent in English and was undocumented. However, she testified that she 

had managed to obtain two part-time positions in just the short time since she had 

returned to Ohio, and she also testified that she had applied for a visa under the 

VAWA (Violence Against Women Act). The record shows that she had been 

granted authorization for employment by the U.S. Citizenship and Immigration 

Services on April 14, 2011, prior to the final judgment entry. While her limited 

English could potentially be a liability, her bilingual ability could also be 

considered an asset. 

{¶17} We find that the trial court’s decision in not awarding spousal 

support was not in any way unreasonable, arbitrary or unconscionable. Mirabel 

did not provide any evidence or arguments in support of her need for such support. 

Furthermore, the trial court did allow a deviation from the calculated child support 

that Mirabel was to pay to David, thereby saving her $157 a month for at least one 

year. Based on all of the above, Mirabel’s assignment of error is overruled. 
Case No. 8-11-17 

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{¶18} Having found no error prejudicial to the Appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW, P.J. and ROGERS, J., concur. 

/jlr