Amount or length of spousal support when there is a severely handicapped child.
A woman who has a minor child who is severely handicapped, seeks spousal support. The marriage is of relatively short duration, and though normally, in such circumstances, a spousal support award would be just a few years, in this case, client is seeking spousal support indefinitely because of the likely inability of the mother to ever work outside of the home, given the needs of the child. We have been asked to research cases where a court has addressed this issue in determining the amount or length of spousal support to be awarded.
Courts in Ohio derive their power to award sustenance alimony from the statutes. Ohio Rev. Code Ann. § 3105.18(A) and (B) provide a trial court with guidelines for determining whether alimony is necessary and the nature, amount and manner of alimony payments. The trial court is provided with broad discretion in deciding what is equitable upon the facts and circumstances of each case, but such discretion is not unlimited.
In Ohio, alimony is comprised of two components: a division of marital assets and liabilities, and periodic payments for sustenance and support. Cherry v.. Cherry, 66 Ohio St. 2d 348; 421 N.E.2d 1293 (1981). After the division of property is made, the trial court may consider (1) whether an additional amount is needed for sustenance and (2) the duration of such necessity. Wolfe v. Wolfe, (1976), 46 Ohio St. 2d 399; 350 N.E.2d 413 (1976).
In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property, the Court of Common Pleas may award reasonable spousal support to either party.
R. C. Ann. 3105.18 stipulates the procedure for award of spousal support.§3105.18 Award of spousal support; modification, reads in relevant part:
(A). As used in this section, “spousal support” means any payment or payments to be made to a spouse or former spouse, or to a third party for the benefit of a spouse or a former spouse, that is both for sustenance and for support of the spouse or former spouse. “Spousal support” does not include any payment made to a spouse or former spouse, or to a third party for the benefit of a spouse or former spouse, that is made as part of a division or distribution of property or a distributive award under section 3105.171 [3105.17.1] of the Revised Code.
(B). In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section 3105.171 [3105.17.1] of the Revised Code, the court of common pleas may award reasonable spousal support to either party. During the pendency of any divorce, or legal separation proceeding, the court may award reasonable temporary spousal support to either party.
An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by instalments, from future income or otherwise, as the court considers equitable.Any award of spousal support made under this section shall terminate upon the death of either party, unless the order containing the award expressly provides otherwise.
(C). (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:
- 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 [3105.17.1] of the Revised Code;
- The relative earning abilities of the parties;
- The ages and the physical, mental, and emotional conditions of the parties;
- The retirement benefits of the parties;
- The duration of the marriage;
- 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;
- The standard of living of the parties established during the marriage;
- The relative extent of education of the parties;
- The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
- 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;
- 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;
- The tax consequences, for each party, of an award of spousal support;
- The lost income production capacity of either party that resulted from that party’s marital responsibilities;
- 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.
In Wolfe, supra, the Court held:
In the initial grant of alimony at the time of decree, the need for, and the amount of, such award rests within the discretion of the court subject to consideration of the specifically enumerated factors in R.C. 3105.18. Likewise, upon modification, such utilization of discretion is required.
Id at 421.
Further, Courts have interpreted the statutory conditions for determination of the duration of spousal support. In Koepke v. Koepke, 12 Ohio App. 3d 80; 466 N.E.2d 570 (1983), the court stated:
Considering current social and economic conditions, we concur in this court’s holding in Mattoni to the limited extent that awards of alimony for sustenance and support should be made terminable upon a date certain in the vast majority of cases wherein both parties have the potential to be self-supporting. In such cases, an award of alimony terminable upon a date certain provides both the interim support necessary to the recoverer of the award and certainty in the judgment.
Id. at 81.
The Koepke court further stated:
Notwithstanding the foregoing, we find, upon our review of the statutes and case law, that there is no legal mandate requiring trial courts to order the termination of an award of alimony on a date certain. Further, in certain circumstances, the termination of the award of alimony on a 4 date certain would work an undue hardship upon the recoverer of the award or upon the payor. Thus, in cases involving a marriage of long duration, parties of advanced age, and a homemaker-spouse with little opportunity to develop a career, a trial court may, in the proper exercise of its discretion, award alimony terminable only upon certain contingencies, such as the death or remarriage of the recoverer of the award of alimony or further order of the court. For those reasons, we hold that this court’s decision in Mattoni, supra, to the extent that it implies that all awards of alimony for sustenance and support must be terminable upon a date certain, is to be strictly limited to its facts.
Id. at 81.
In Kaechele v. Kaechele, 35 Ohio St. 3d 93; 518 N.E.2d 1197 (1988), the Court applied principles enunciated inR.C. 3105.18(B) and the extent of applicability of this statutory provision to spousal support cases, and stated:
R.C. 3105.18(B) lists standard of living as one of eleven factors a trial court is to consider in determining the amount of alimony. Some of the factors enumerated in R.C. 3105.18(B) are more pertinent than others in the process of reaching an equitable property division, while some are more relevant in ascertaining the need for and amount of sustenance alimony. See Cherry, supra, at 355-356; 421 N.E. 2d at 1299; 20 Ohio Op. 3d at 322-323; Wolfe, supra, at 414; 350 N.E. 2d at 423; 75 Ohio Op. at 482. However, all the statutory factors must be considered. The goal is to reach an equitable result. The method by which the goal is achieved cannot be reduced to a mathematical formula. Therefore, we hold that in making a sustenance alimony determination, the court must consider all the factors listed in R.C. 3105.18(B) and not base its determination upon any one of those factors taken in isolation.
Id at 96.
In Kunkle v. Kunkle, 51 Ohio St. 3d 64, the Court held:
Accordingly, we hold 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.
Id at 69.
In Sullivan v. Sullivan, 2000 Ohio App. LEXIS 4447, the appellant husband and appellee wife had a severely handicapped minor child. She could not walk, talk, or feed herself. She required 24 hour care. The trial court determined the child was incapable of becoming self-sufficient. Appellee was appointed as the minor’s residential and legal custodian. Appellant was ordered to pay $ 758 per month child support, and $ 1,000 per month spousal support for an indefinite time. The trial court found the marriage was of long duration, and determined appellee was a homemaker with little opportunity to develop meaningful employment outside the home. The trial court considered the constant needs of the child, and that appellee had been unemployed for most of the marriage, and had few marketable skills. The Appellate court held that the trial court did not act unreasonably, arbitrarily, or unconscionably in awarding appellee spousal support for an indefinite period of time. Id. at 6.
The Court reviewed the findings of the trial Court and applying the decision of the Kunkle, Court, held:
The trial court also determined that appellee was a homemake -spouse with little opportunity to develop meaningful employment outside the home. In making this determination, the court considered the following facts: 1) the minor child is severely handicapped and requires twenty-four hour assistance; 2) appellee spends most of her time caring for the child, and as long as the minor child continues to reside with appellee, she would only be able to obtain part-time employment; 3) appellee had been unemployed for most of the marriage and has few marketable skills. Additionally, the court retained jurisdiction over the issue of spousal support. Thus, we cannot say that the trial court in this case acted unreasonably, arbitrarily, or unconscionably in awarding appellee spousal support for an indefinite period of time. Accordingly, appellant’s first assignment of error is not well-taken.
Id at 4.
In Byabato v. Ijumba, 2001 Ohio App. LEXIS 5300, the husband argued on appeal the trial court erred in failing to set forth a date for termination of his spousal support obligation and awarding appellee wife’s attorney fees. The appellate court advised that the law favored a definite termination date for awards of spousal support, giving the payee enough time to become self-supporting; however, if the payee did not have resources, ability, or potential to become self-supporting, an award of spousal support for life would be appropriate. The appellate court determined the record supported the conclusion the wife was not able to become self-supporting at any time in the foreseeable future because of the demands of caring for a special needs child in addition to two other small children. Accordingly, the appellate court could not say the trial court abused its discretion in ordering spousal support for an indefinite period, or in setting the amount of spousal support.
The Court in Shaffer v. Shaffer, 109 Ohio App. 3d 205; 671 N.E. 2d 1317 (1996) held:
According to R.C. 3105.18(B), a court may award reasonable spousal support, “as the court considers equitable,” to a requesting party. Among many factors a court must consider when determining whether the amount of spousal support is appropriate and reasonable, are the income of the parties, the relative earning abilities of the parties, and the extent to which it would be inappropriate for a party, because of being custodian of a minor child of the marriage, to seek employment outside the home. See R.C. 3105.18(C)(1)(a), (b), and (f).While a full-time nursing position could provide Appellee, the recommended custodial parent, with additional income, the referee found Appellee’s $ 20,000 a year income to be her maximum earning capacity since she had two young girls, ages five and ten, to care for, one of which suffered from dyslexia and required considerable parental tutoring. Given these facts, we cannot conclude that the trial court abused its discretion when it did not impute full time earnings to Appellee when determining the proper award of spousal support. We overrule Appellant’s second assignment of error.
Id at 210-211.
Pursuant to Ohio Rev. Code Ann. Section 3105.18 and numerous Ohio cases, Ohio Courts have held that there is no abuse of discretion in awarding spousal support for an indefinite period of time in cases where the woman is a homemaker with little opportunity to develop meaningful employment outside the home since she is caring for a child with special needs, unemployed for most of the marriage, and has few marketable skills. The duration of the marriage is merely one of numerous factors in determining the length and amount of alimony to be awarded. In the case at hand, though the marriage is of relatively short duration, since the spousal support is for a woman with a severely handicapped child, combined with the other prevailing factors, the Court will be inclined to award support for a long duration.