Duration of Spousal Support Award - "Tacking" of Previous Marriage

Tyler v. Tyler
2010-Ohio-1428
Eighth Appellate District
Cuyahoga County
-Spousal Support - "Tacking" of previous marriage

Plaintiff-appellant Kenneth Tyler appeals the portion of his divorce decree dividing property and awarding spousal support to Diana Tyler. Specifically, Kenneth objects to the lifetime award of spousal support.

Kenneth and Diana were first married in February 1989 and divorced in 1993. They reunited, began living together again in 1996 and were remarried in July of 2002. The couple separated in 2008. At the time of their second divorce, Diana was receiving permanent disability in the amount of $753 per month while Kenneth anticipated earning $74,000 in that respective calendar year.

After a hearing, the trial court determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court. Kenneth asserts that the trial court erred when it ordered him to pay "lifetime spousal support for a marriage lasting 6.5 years." The appellate court affirmed.

From the Opinion:

{¶ 13} Specifically, Kenneth argues that the trial court’s decision — making the spousal support indefinite — was not consistent with the Ohio Supreme Court’s holding in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 554 N.E.2d 83. in Kunkle, the Ohio Supreme Court held, at paragraph one of the syllabus:"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."

{¶ 14} Notably, however, the Kunkle court also recognized that "providing a termination date is not legally mandated and, in some situations, it could work a hardship on either the payor or payee. " Id. at 68, quoting Koepke v. Koepke (1983), 12 Ohio App.3d 80, 81, 466 N.E.2d 570. The high court further pointed out that "if under reasonable circumstances a divorced spouse does not have the resources, ability or potential to become self-supporting, then an award of
sustenance alimony for life would be proper." (Emphasis sic.) Id. at 69.

{¶ 15} In the present case, the trial court found that Diana suffered from obsessive compulsive disorder with depression and "has been deemed by the Social Security Administration to be permanently disabled." The court further found that Diana’s disability prevents her from seeking gainful employment and that she "cannot complete her daily activities of life." And based on a report from the SSA, the court also determined that Diana "cannot maintain employment," and that her income from Social Security disability was $9,036 per year.

{¶ 16} The trial court considered that Kenneth’s income was $74,000 per year and that he was "gainfully employed in an area that is highly specialized."

{¶ 17} The trial court then determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court.

{¶ 19} Although the trial court in this case found the duration of the marriage to be 6.5 years, it also heard evidence that the parties were previously married and that they lived together all but three years since they were first married in 1989 (thus, all but three out of 20 years). Under similar circumstances, the Ninth District upheld an indefinite spousal support. See Moore v. Moore (1992), 83 Ohio App.3d 75, 613 N.E.2d 1097. In Moore, the parties were married twice, with the second marriage lasting only four years. The court found that "the previous legal, marital relationship [was] relevant to the trial court’s decision to award spousal support" under R.C. 3105.18(C)(1)(n) ("any other factor that the court *** finds to be relevant and equitable"). See, also, Jernigan v. Jernigan (July 2, 1998), 8th Dist. No. 72899 (recognizing the principle set forth in Moore that the parties’ first marriage may be considered in determining spousal support for the second marriage); Swartz v. Swartz (Feb. 24, 1997), 12th Dist. No. CA96-07-063 (parties’ first marriage may be relevant to a spousal support determination).

{¶ 20} Moreover, the trial court (unlike the trial court in Kunkle) reserved jurisdiction to modify the amount and the term of the spousal support award pursuant to R.C. 3105.18(E). The failure to assign a termination date is not a lifetime award where the court retains continuing jurisdiction to decrease or terminate the spousal support based on a change in either party’s circumstances. Donese v. Donese (Apr. 10, 1998), 2d Dist. No. 97CA70. And at a modification hearing, the court can once again determine if it is appropriate to set a termination date. See Vanke v. Vanke (1992), 80 Ohio App.3d 576, 581, 609 N.E.2d 1328. Accordingly, appellant is not without a remedy should future facts demonstrate a modification is warranted.