[Cite as Daugherty v. Daugherty, 2013-Ohio-1934.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF WAYNE ) 

NANCY K. DAUGHERTY 

 Appellant 

 v. 

RONALD G. DAUGHERTY 

 Appellee 

C.A. No. 12CA0003 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF WAYNE, OHIO 

CASE No. 09-DR-0365 

DECISION AND JOURNAL ENTRY

Dated: May 13, 2013 

 

CARR, Judge. 

{¶1} Appellant Nancy Daugherty appeals the judgment of the Wayne County Court of 

Common Pleas, Domestic Relations Division. This Court affirms in part, reverses in part, and 

remands. 

I. 

{¶2} After sixteen years of marriage, Nancy Daugherty (“Wife”) filed a complaint for 

divorce against Ronald Daugherty (“Husband”). Husband answered and counterclaimed for 

divorce. Husband filed a motion for temporary orders, specifically requesting that the trial court 

enjoin the parties from allowing third parties to reside in the marital home during the pendency 

of the divorce proceedings. The magistrate heard Husband’s motion and issued a decision and 

order two days later, granting Husband’s motion and issuing an order restraining both parties 

from allowing others to reside in the marital home without the permission of the other spouse. 
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{¶3} Almost a month later, Wife’s attorney moved to withdraw from further 

representation of Wife based on her discharge of him. The trial court granted counsel permission 

to withdraw. One week later, Husband filed a motion to enforce an agreement that the parties 

had allegedly made regarding the issues raised in Husband’s motion for temporary orders. 

Husband argued that the parties had reached an agreement subsequent to the hearing and that 

they had not had time to inform the court before the magistrate issued his decision. Husband 

asserted that the parties intended for their agreement to replace the magistrate’s order, but that 

Wife discharged her attorney before he was able to execute the agreement on her behalf. 

Husband submitted the purported “Consent Magistrate’s Order” to the court. The order stated 

that it would replace the magistrate’s prior decision and order and characterized the orders within 

as “temporary orders.” The temporary orders included that Wife would have exclusive use of the 

marital home until February 1, 2010, at which time Wife’s son must vacate the premises and 

both Husband and Wife would again have full access to, use, and occupancy of the home. Wife 

would be required to make all payments associated with the home during her period of exclusive 

use. Finally, “[Wife] will make no claim to any part of [Husband’s] inheritance, and no claim to 

any appreciation, active or passive, with respect to any separate property interest which 

[Husband] has.” Neither attorney had noted his approval by signing the order under the 

“Approved” heading. The magistrate scheduled the matter for hearing. 

{¶4} The magistrate issued a “decision and order” and ordered Husband’s attorney to 

submit a consent magistrate’s order consistent with the terms of the agreement as represented by 

Husband. Wife moved to set aside the order. Nevertheless, without waiting for the trial court to 

rule on the motion to set aside, the magistrate signed the order that reflected the “temporary 

orders” as enunciated above, including the provision that Wife would make no claim to 
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Husband’s inheritance or appreciation in any separate property. Six months later, after the trial 

court had still not ruled on Wife’s pending motion to set aside, Husband moved the court for a 

ruling. The next day, the trial court summarily denied Wife’s motion to set aside without any 

analysis and ordered that it was adhering to its decision dated December 15, 2009. Although the 

magistrate issued his decision and order on December 15, 2009, there is no decision by the judge 

filed on that day, so there was no prior decision by the court to which it could adhere. 

{¶5} On August 18, 2010, the matter proceeded to trial before the magistrate on the 

parties’ divorce action. The parties agreed that they had resolved all issues except the issue of 

spousal support. The parties’ agreement regarding the division of property was read into the 

record. Subsequently, the parties filed a stipulated agreement, approved by signature of the 

attorneys for both Husband and Wife. The agreement stated that the parties had reached an 

agreement on all issues relevant to their divorce except spousal support. The agreement further 

delineated the terms of their agreement regarding the division of all property. The magistrate 

issued a decision in which he found that spousal support was appropriate and recommended that 

Husband pay Wife $300.00 per month for a period of 24 months. The trial court issued a 

judgment decree of divorce the same day, reflecting the magistrate’s recommendations. 

{¶6} Wife filed timely objections, challenging the award of spousal support. Husband 

filed a brief in opposition. The trial court overruled Wife’s objections without analysis and 

ordered that it adhered to it prior judgment decree of divorce. Wife appealed and raises two 

assignments of error for review. 
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II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY GRANTING [HUSBAND’S] REQUEST TO 

ENFORCE THE CONSENT AGREEMENT THAT [WIFE] NEITHER 

AGREED TO NOR RATIFIED. 

{¶7} Wife argues that the trial court erred by granting Husband’s motion to enforce the 

temporary orders reflected in the consent agreement submitted by Husband and adopted by the 

trial court during the pendency of the action. This Court disagrees. 

{¶8} The crux of Wife’s argument is that the parties had not reached an agreement 

regarding the allocation of certain real property in which Husband had an interest. She argues 

that, accordingly, the trial court erred by enforcing the parties’ alleged consent agreement to 

temporary orders regarding such property while the divorce action was pending. 

{¶9} Wife subsequently appeared for trial on the parties’ competing complaints for 

divorce, at which time both parties asserted on the record that they had reached an agreement as 

to all issues except for the issue of spousal support. Husband’s attorney read the parties’ 

agreement regarding the division of property into the record. Wife’s attorney agreed that 

opposing counsel accurately enunciated the terms of the parties’ agreement. In addition, both 

Husband and Wife agreed that the terms were accurately presented to the court. Specifically, 

upon direct examination by her attorney, Wife confirmed that the parties had reached an 

agreement regarding all financial aspects of the case with the exception of spousal support, 

asserted that she believed the agreement was fair and equitable, and she requested that the trial 

court adopt the parties’ agreement as part of the judgment decree of divorce. The “Stipulated 

Agreement” was subsequently reduced to writing, signed by both attorneys, and filed with the 

court. 
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{¶10} Courts have recognized that a party has not preserved an issue for appeal when 

she has entered into a stipulation or agreement regarding the issue before the trial court. See, 

e.g., Presjak v. Presjak, 11th Dist. No. 2009 T 0077, 2010-Ohio-1455, ¶ 40. In fact, unless the 

party has explicitly reserved the right to challenge the issue on appeal, a consent decree or other 

stipulation or agreement before the trial court operates as a waiver of the right to raise the issue 

on appeal. Miller v. Miller, 3d Dist. No. 9 03 38, 2004-Ohio-923, ¶ 11. 

{¶11} The parties jointly asserted at the divorce hearing that they had reached an 

agreement regarding all financial matters with the exception of spousal support. Their agreement 

regarding the division of property was read into the record and subsequently submitted in writing 

to the court. Both attorneys noted their approval in writing. Wife expressly stated on the record 

that the agreement was fair and equitable. The parties’ agreement resolved all issues regarding 

the property division including all issues addressed in the prior consent agreement that Wife now 

attempts to challenge. Because the parties settled all matters regarding the division of property, 

neither presented any evidence on the issue. Nor did Wife qualify at trial that the parties’ 

settlement excluded the property that was the subject of the disputed consent agreement. Wife’s 

agreement at trial constituted a waiver of her right to now raise any issues regarding the 

allocation of property. The first assignment of error is overruled. 

ASSIGNMENT OF ERROR II

IN LIGHT OF THE FACTORS CONTAINED IN [R.C.] 3105.18, THE TRIAL 

COURT ERRED IN ITS DECISION THAT [HUSBAND] PAY SPOUSAL 

SUPPORT FOR A LIMITED PERIOD OF TWENTY-FOUR MONTHS. THE 

TRIAL COURT ALSO ERRED IN FINDING THAT IT WAS REASONABLE 

AND APPROPRIATE FOR [HUSBAND] TO ONLY PAY $300.00 PER 

MONTH TO [WIFE] AS HIS SPOUSAL SUPPORT OBLIGATION. 

{¶12} Wife argues that the trial court erred in its determination regarding spousal 

support. This Court agrees. 
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{¶13} The appellate court reviews the trial court’s award of spousal support for an abuse 

of discretion. An abuse of discretion is more than an error of judgment; it means that the trial 

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not 

substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 

619, 621 (1993). Moreover, “[t]he burden is on the party challenging the award to show that the 

award is unreasonable, arbitrary, or unconscionable in order for this Court to overturn the 

award.” Gregory v. Gregory, 9th Dist. No. 98CA0046, 2000 WL 877823 (July 6, 2000). 

{¶14} While a trial court has wide latitude in awarding spousal support, it must do so in 

consideration of the fourteen factors enunciated in R.C. 3105.18(C)(1). Those factors include: 

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[;] 
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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). 

{¶15} Wife sought spousal support in the amount of $1500 per month for eight years. 

Husband did not think he should have to pay Wife anything in the way of spousal support. The 

trial court awarded Wife $300 per month for twenty-four months. This Court concludes that the 

amount and duration of the spousal support award to Wife was unreasonable based on a 

consideration of the statutory factors. 

{¶16} The trial court recognized the great disparity between Husband’s and Wife’s 

incomes although it apparently did not find the disparity very significant. Based on the parties’ 

2009 tax returns, in which each party filed married and separately, Husband’s adjusted gross 

income was $69,403, while Wife’s was $19,825. Husband earned $12,429 as a bus driver for 

Triway schools. His income included investment interest of $13,660, which the parties agreed 

would no longer continue because the investment company had filed for bankruptcy. It also 

included $20,827 from his retirement account. After the divorce, Wife would receive 50% of 

5/33 of Husband’s retirement, or approximately $1578 per year, leaving an annual retirement 

account income of $19,249 for Husband. Husband’s income included $6481 from farm rental 

income, and Husband admitted that he was inheriting a second farm from which he expected to 

receive an additional $4500 per year in rental income. Wife earned $7234 through her 

employment at Triway schools and $3400 from mowing her mother’s grass. She had earlier 
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earned approximately $28,000 per year before Husband decided to move the couple to Georgia 

to be close to his family. Upon their return three years later, Wife was unable to find work at her 

prior salary. After the divorce, she would also receive approximately $1578 per year from 

Husband’s retirement account. Both parties also receive social security benefits. Without 

considering social security benefits, and assuming both parties maintained their current 

employment, Husband’s anticipated future income from all sources would be approximately 

$60,200 per year, while Wife’s anticipated future income from all sources would be 

approximately $21,400 per year. R.C. 3105.18(C)(1)(a)/(d)/(m). 

{¶17} Husband is in good health, while Wife’s health is fair. Wife had rotator cuff 

surgery which physically limited her ability to lift objects. In addition, Wife lost the vision in 

one eye. She testified that her employer could not likely offer her more than the 17 1⁄2 hours per 

week that she was already working, nor did she believe she would be capable of working 

additional hours. Both parties were 64 years old at the time of the hearing. Husband did not 

want to work beyond the age of 66, although he did not testify that he was unable to do so. 

Neither party intended to obtain additional education or training in an effort to obtain additional 

employment. There was no testimony regarding the parties’ education. R.C. 

3105.18(C)(1)(b)/(c)/(h)/(j)(k). 

{¶18} The parties were married for seventeen years and had no children together. They 

enjoyed a modest standard of living while married. R.C. 3105.18(C)(1)(e)/(f)/(g). 

{¶19} Husband owned a home with no mortgage prior to the parties’ marriage. That 

home became the marital home. Wife sold the home she owned prior to marriage. Husband 

inherited his mother’s home, two farms, and significant assets from his mother’s and an uncle’s 

estate. Wife moved into her mother’s home when the parties separated. Her mother was elderly 
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and ill. Although she might stand to inherit some assets from her mother, she has four siblings 

who likely would also inherit a portion of their mother’s estate. R.C. 3105.18(C)(1)(i). 

{¶20} Both parties presented monthly budgets to the court. Husband estimated his 

monthly income to be $4089, which did not include the anticipated additional farm rental 

income. He estimated his monthly expenses to be $3525, which included $300 for groceries, 

$480 for eating out, and $50 for coffee and snacks. He also included a monthly expense ($200) 

for a vehicle replacement fund so that he would be able to either fully fund or make a significant 

down payment on a new vehicle. Husband continued to live mortgage-free in his home. He 

would assume some additional tax liabilities when the second farm he was inheriting cleared 

probate. R.C. 3105.18(C)(1)(i)/(l). 

{¶21} Wife estimated her monthly expenses to be $2812, which included an anticipated 

rent payment of $700. She was then paying her mother’s guardian $50 per month to live in her 

mother’s home, but she expected that the guardian would soon sell the home and she would be 

forced to find alternate living quarters. Based on her research, she testified that she would be 

lucky to find an apartment for rent for less than $700 per month. Wife did not include a vehicle 

payment expense in her monthly budget, although she testified that she needed a new vehicle. 

She testified that she was currently borrowing a car because her car was no longer functional. 

R.C. 3105.18(C)(1)(i). 

{¶22} Husband argued that he would have to pay Wife every penny he earned from 

employment and supplement that amount with an additional $8000 per year to be able to pay 

Wife $1500 per month as she requested. He further asserted that it would be unfair to force him 

to work until the age of 72 in order to pay such a spousal support obligation. The evidence 

demonstrated that Husband had income and other assets which far exceeded Wife’s. He was also 
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in better health than Wife. Moreover, Wife testified that Husband, without her knowledge or 

consent, made the decision to invest a large sum of the parties’ money in a company that went 

bankrupt. While it is not reasonable to believe that Husband should have known that the 

managers of the investment company would prove to be unscrupulous, the loss of the yearly 

investment interest also had a negative effect on Wife, not only Husband who claimed the 

interest on his tax return. R.C. 3105.18(C)(1)(n). 

{¶23} After careful consideration of the record and the law relevant to the case, this 

Court concludes that the amount of spousal support awarded by the trial court to Wife is 

unreasonable in light of the facts. Although the court need not consider need in its determination 

of spousal support, in this case, the trial court maintained a large disparity in the standards of 

living of the parties when it crafted its award. It gave no reasoning for its award. Instead, the 

amount appeared arbitrary, with no discernible basis. 

{¶24} The duration of the award was also unreasonable. 

“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.” 

Farnsworth v. Farnsworth, 9th Dist. No. 02CA0074-M, 2003-Ohio-2341, ¶ 12, quoting Kunkle 

v. Kunkle, 51 Ohio St.3d 64 (1990), paragraph one of the syllabus. 

{¶25} Here, the trial court provided for the termination of the award but did not do so 

within a reasonable time. The parties were married for seventeen years. Wife is of an advanced 

age and has little opportunity to develop meaningful employment outside the home. On the other 

hand, Husband, has significantly greater resources and the ability to be self-supporting. Under 
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these circumstances, an award of spousal support to Wife for a mere 24 months was 

unreasonable. 

{¶26} Wife’s second assignment of error is sustained. 

III. 

{¶27} Wife’s first assignment of error is overruled. The second assignment of error is 

sustained. The judgment of the Wayne County Court of Common Pleas, Domestic Relations 

Division, is affirmed in part, reversed in part, and the cause remanded for further proceedings 

consistent with this opinion. 

Judgment affirmed in part, 

reversed in part, 

and cause remanded. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 
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 Costs taxed equally to both parties. 

 

 DONNA J. CARR 

 FOR THE COURT 

BELFANCE, P. J. 

WHITMORE, J. 

CONCUR.

APPEARANCES:

ROSANNE K SHRINER, Attorney at Law, for Appellant. 

LON R. VINION, Attorney at Law, for Appellee.