McNee v. McNee ( 2017 )

[Cite as McNee v. McNee, 2017-Ohio-7700.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
EDWARD L. McNEE, )
)
PLAINTIFF-APPELLANT, )
) CASE NO. 15 CO 0031V. )
) OPINION
AMANDA L. McNEE, )
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Domestic Relations Division of
Columbiana County, Ohio
Case No. 2013-DR-0018
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellant Attorney Christopher A. Maruca
201 E. Commerce St., Suite 316
Youngstown, Ohio 44503
For Defendant-Appellee Attorney Charles E. Dunlap
7330 Market Street
Youngstown, Ohio 44512
JUDGES:
Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: September 14, 2017
[Cite as McNee v. McNee, 2017-Ohio-7700.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Edward McNee, appeals from a Columbiana County
Domestic Relations Court decision granting a divorce to him and defendant-appellee,
Amanda McNee.
{¶2} The parties were married on September 25, 2009. They have one
child. Appellant filed for divorce on January 14, 2013.
{¶3} The matter proceeded to a trial before a magistrate. Relevant to this
appeal, the magistrate heard testimony regarding the valuation of appellant’s
businesses, the ownership and valuation of certain guns and a jukebox, the amount
of child support, the valuation of a parcel of real property in Michigan, and alleged
financial misconduct by appellee. Appellant owns three businesses, JaSar
Recycling, Inc., JaSar Enterprises, LLC, and Liquid Luggers, LLC. The magistrate
heard testimony from both parties, experts who valued the business, and several
other witnesses.
{¶4} The magistrate made the following determinations relevant to this
appeal. Appellant’s businesses’ value increased by $284,000 during the marriage.
Appellant’s child support obligation is $1,062.60 per month. Appellee did not commit
financial misconduct. A jukebox purchased by appellant is marital property. Nine
guns are marital property. Certain real property located in Michigan has a value of
$7,600. Appellant is required to pay for appellee’s litigation expenses in the amount
of $7,700.
{¶5} Appellant filed objections to the magistrate’s decision. Specifically,
appellant raised objections regarding the magistrate (1) failing to consider his spousal
support payment in computing child support; (2) failing to credit him for a debt
appellee discharged in bankruptcy; (3) designating a jukebox as marital property; (4)
valuing property in Michigan at $7,600; (5) designating nine guns as marital property;
(6) requiring him to pay for appellee’s expert; (7) determining the marital value of the
businesses; and (8) terminating temporary spousal support when it did.
{¶6} The trial court overruled appellant’s objections and adopted the
magistrate’s decision as the order of the court. Appellant filed a timely notice of
appeal on December 23, 2015. The trial court issued a stay of its order pending this
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appeal.
{¶7} Appellant now raises six assignments of error.
{¶8} Appellant’s first assignment of error states:
THE TRIAL COURT AND THE MAGISTRATE ABUSED THEIR
DISCRETION AND COMMITTED AN ERROR OF LAW BY
IMPROPERLY VALUING THE BUSINESSES BASED UPON A LOAN
GRANTED TO THE COMPANY AND WITHOUT ANY STATED
METHODOLOGY OR FACTUAL BASIS.
{¶9} Appellant argues the trial court abused its discretion by failing to
ascertain the businesses’ premarital and post-marital values. Appellant points to the
magistrate’s findings as to the businesses’ values.
{¶10} The magistrate found that the businesses’ values increased by
$284,000 during the marriage based on a loan from appellant made during the
marriage. He further found the businesses continue to provide appellant an income
in excess of $300,000 per year.
{¶11} Appellant argues the court failed to consider the evidence he presented
that the businesses had a premarital value of $776,000 and, during the course of the
marriage, the businesses’ value fell to $104,192. Appellant’s appraiser, therefore,
concluded the businesses had no marital value. Appellant does not dispute that the
businesses provide him with an income. But he asserts the income stream is
different from the actual value of the businesses.
{¶12} Next, appellant asserts because the evidence was uncontroverted that
the businesses’ premarital value was $776,000, it was an abuse of discretion not to
accept this valuation. Appellant claims the trial court failed to use any type of
methodology in valuing the businesses.
{¶13} Finally, appellant points out that even under appellee’s valuation of the
businesses, their value decreased from their premarital value. Therefore, he
contends the court erred in finding that the businesses’ value increased during the
marriage.
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{¶14} The trial court is not required to adopt any particular methodology in
determining a business's value. Brown v. Brown, 8th Dist. No. 100499, 2014-Ohio-
2402, ¶ 32. “In determining a business's value, the trial court has discretion to weigh
the testimony offered by the parties' valuation experts.” Id. It has broad discretion in
determining which expert to believe in assigning a value to marital property. Cronin
v. Cronin, 2d Dist. No. 02-CA-110, 03-CA-75, 2005-Ohio-301, ¶ 13. Thus, we will not
disturb the trial court’s decision absent an abuse of discretion. Abuse of discretion
connotes more than an error of law or judgment; it implies that the trial court acted
unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
{¶15} Two of appellant’s businesses were in existence prior to the marriage
(JaSar Recycling and JaSar Enterprises) while Liquid Luggers was started during the
marriage. Both parties presented valuation experts who valued the businesses’
combined value.
{¶16} The magistrate noted that appellant’s expert, William Leicht, valued the
business in 2006, three years prior to the marriage, at a value of $776,000. As of the
date of the trial, Leicht testified that the businesses were now valued at only
$104,192. He opined the businesses had no marital value due to continuing losses.
{¶17} The magistrate noted that appellee’s expert, Kelly Bianco, determined
that the businesses increased in value during the marriage by $365,000. Bianco
opined that $72,000 of the increase was due to an increase in value while $284,000
of the increase resulted from a shareholder note. This note was a personal loan from
appellant to the businesses during the marriage, which may or may not be repaid.
{¶18} The magistrate found that the businesses increased in value by
$284,000 during the course of the marriage based on the loan from appellant. The
magistrate observed that another way to view this transaction would be to consider
the note owed to appellant as a marital asset. However, the magistrate also found he
was not persuaded that the businesses’ value had increased by $72,000, as Bianco
had opined.
{¶19} In considering appellant’s objection on this issue, the trial court found
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that the magistrate’s findings were supported by Bianco’s testimony along with the
testimony of Steve Higgins, another valuation expert. It determined that the
$284,000 could either be considered a contribution to the capital of the businesses,
which increased their value by $284,000, or it could be considered a martial debt
owed to the parties. The court noted that Higgins testified that no matter how the
$284,000 was classified, it was available to appellant who could take the money out
for his own use.
{¶20} Leicht, appellant’s expert, testified that on August 14, 2006, the date of
appellant’s prior divorce, the businesses were valued at $776,000. (3/3/15 Tr. 129-
131). Leicht also gave his opinion as to the value of the businesses of March 4,
2014, which was considered the end date of this marriage. Leicht testified that he
determined the value of the businesses was $104,193. (3/3/15 Tr. 131; Pl. Ex. 25).
Leicht stated that there are four common ways to value businesses: (1) capitalization
of earnings; (2) discounted cash flow; (3) net book value; and (4) forecasting. (3/3/15
Tr. 132). Leicht used the capitalization of earnings method to value appellant’s
businesses. (3/3/15 Tr. 134). Leicht concluded there was no marital value to the
businesses. (3/3/15 Tr. 138).
{¶21} Leicht also took issue with the valuation by appellee’s expert. He
approved of her methodology but he took issue with the way she paid down debts of
the businesses. (3/3/ Tr. 138, 143). He testified she should not have taken into
account $150,000 appellant used to pay down the debt. (3/3/15 Tr. 144-145).
{¶22} Higgins, another expert called by appellant, testified that although he
did not take issue with the method appellee’s expert used to value the businesses,
he did take issue with how she arrived at her numbers. (3/3/15 Tr. 179). He too
opined that she increased the businesses’ value by $150,000 and that she did not
properly account for the shareholder note for the money appellant put into the
businesses. (3/3/15 Tr. 181-182).
{¶23} On cross examination, however, Higgins testified that no matter how
the $284,000 that appellant put into the businesses was classified, it was available to
appellant who could take the money out for his own use. (3/3/15 Tr. Tr. 189-190).
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And Higgins also opined that it was not proper to rely on the valuation from 2006 in
determining the premarital value of the businesses in 2009. (3/3/15 Tr. 207-208).
{¶24} Kelly Bianco, appellee’s expert, testified that the 2006 valuation from
appellant’s prior divorce had become “stale,” since it was more than a year old.
(3/3/15 Tr. 214). She testified that she valued the businesses at $266,000 on March
4, 2014. (3/3/15 Tr. 215). She stated that she valued the businesses as of
September 25, 2009, the date of the marriage, to determine that from the beginning
date of the marriage to the end date of the marriage the businesses increased in
value by $72,000. (3/3/15 Tr. 231-232). She then added to the increased value, a
shareholder’s note of $284,000. (3/3/15 Tr. 232). She stated that $284,000 could be
considered either a loan from appellant to the businesses or it could be considered
equity in the company. (3/3/15 Tr. 233). Adding the $284,000 note to the $72,000
increase she had already determined, Bianco opined the businesses had increased
by $356,000 since the date of the marriage.
{¶25} This is a case of competing experts. Leicht testified as to what he
believed the businesses’ marital value was and Bianco testified as to what she
believed their marital value was. Higgins agreed with Leicht on some matters, such
as his disapproval of Bianco’s valuation. But he also agreed with Bianco that the
$284,000 that appellant put into the businesses was available to appellant. And
Higgins agreed that it was not proper to rely on a valuation from 2006 in determining
the premarital value of the businesses in 2009.
{¶26} We cannot conclude that the trial court abused its discretion in finding
the businesses increased in value during the marriage by $284,000. The court
simply had to choose which expert opinion to place more weight on. The court did
not find credible the testimony that the businesses’ value increased by an additional
$72,000 above the shareholder’s note. But it found that because appellant had put
$284,000 into the businesses during the marriage, that money was either a debt
owed by the businesses to appellant or that money was appellant’s to withdraw from
the businesses when he saw fit. One of appellant’s experts even agreed with this.
Either way, the court found that the money was a marital asset.
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{¶27} Appellant also contends it was error for the court not to accept the
businesses’ premarital value of $776,000. But this value was not placed on the
businesses at the inception of the parties’ marriage. This value was placed on
appellant’s businesses when he divorced his first wife in 2006. The parties to this
case did not marry until September 25, 2009. Thus, the 2006 value was three years
old by the time the parties married and there was no testimony as to how those three
years between 2006 and 2009 affected the 2006 valuation. Thus, there was not
evidence as to the premarital value of the businesses.
{¶28} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
{¶29} Appellant’s second assignment of error states:
THE TRIAL COURT AND THE MAGISTRATE ABUSED THEIR
DISCRETION AND COMMITTED AN ERROR OF LAW BY FAILING
TO FACTOR IN APPELLANT’S CURRENT SPOUSAL SUPPORT
OBLIGATION TO HIS EX-WIFE WHEN CALCULATING CHILD
SUPPORT.
{¶30} The magistrate stated that in calculating child support, he did not
consider appellant’s spousal support from a prior marriage because that obligation
was scheduled to end in July 2015 (the magistrate’s decision was issued in April
2015).
{¶31} On appellant’s objection, the trial court noted that the magistrate took
judicial notice of appellant’s spousal support obligation from a prior marriage. The
court found that appellant was ordered to pay spousal support to his first ex-wife in
the amount of $4,800 per month for 108 months commencing on August 1, 2006.
The court found that the magistrate considered the particular facts of this case
including appellant’s spousal support obligation. The court also found that the
magistrate capped appellant’s annual income at $150,000 and did not use his
adjusted gross income of $330,000 in calculating child support. The court found the
magistrate complied with R.C. 3119.04(B) and used a reasonable means to calculate
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child support. Because this case involved a situation where the parties’ income
exceeded $150,000, the court found the magistrate was not constrained by the child
support worksheet in calculating appellant’s obligation. The court concluded that the
magistrate correctly determined child support.
{¶32} Here appellant contends the court erred in adopting the magistrate’s
child support worksheet. He asserts the worksheet failed to take into consideration
the spousal support he was paying his ex-wife of over $50,000 per year. Appellant
claims that R.C. 3119.05(B) mandates that spousal support payments actually made
must be deducted from his gross income when computing his current child support
obligation.
{¶33} In reviewing matters concerning child support, appellate courts look at
whether the trial court abused its discretion. Booth v. Booth, 44 Ohio St.3d 142, 144,
541 N.E.2d 1028 (1989).
{¶34} R.C. 3119.05(B) provides that when computing a child support
obligation:
The amount of any pre-existing child support obligation of a parent
under a child support order and the amount of any court-ordered
spousal support actually paid shall be deducted from the gross income
of that parent to the extent that payment under the child support order
or that payment of the court-ordered spousal support is verified by
supporting documentation.
(Emphasis added).
{¶35} Generally, a court calculates child support using the worksheet
provided in R.C. 3119.022 with reference to the child support schedule set forth in
R.C. 3119.021. Bajzer v. Bajzer, 9th Dist. No.25635, 2012-Ohio-252, ¶ 5. But when
the combined gross income of the parents exceeds $150,000, the court calculates
child support under R.C. 3119.04(B), which provides:
If the combined gross income of both parents is greater than one
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hundred fifty thousand dollars per year, the court, with respect to a
court child support order * * * shall determine the amount of the
obligor's child support obligation on a case-by-case basis and shall
consider the needs and the standard of living of the children who are
the subject of the child support order and of the parents. The court or
agency shall compute a basic combined child support obligation that is
no less than the obligation that would have been computed under the
basic child support schedule and applicable worksheet for a combined
gross income of one hundred fifty thousand dollars, unless the court or
agency determines that it would be unjust or inappropriate and would
not be in the best interest of the child, obligor, or obligee to order that
amount. If the court or agency makes such a determination, it shall
enter in the journal the figure, determination, and findings.
{¶36} In this case, the court determined appellant’s gross income to be
$331,877. It imputed full-time, minimum wage income to appellee of $15,080. The
court calculated child support based on a combined gross income of $150,000. It
found this calculation appropriate in this case since, in addition to child support,
appellant was providing health insurance for the child, paying all uninsured medical
expenses for the child, paying the child’s tuition at a private school, and paying the
costs associated with all school activities. And because appellant’s spousal support
obligation to his first ex-wife was to end just three months after the magistrate’s
decision, and before the trial court issued its final judgment entry, the court did not
deduct it from appellant’s gross income.
{¶37} Given the facts of this case, the trial court did not abuse its discretion in
determining not to deduct appellant’s spousal support obligation from his gross
income. Because the parties’ gross income exceeded $150,000, the court was not
obligated to strictly adhere to the child support worksheet. Moreover, at the time of
the magistrate’s decision, appellant’s spousal support obligation to his ex-wife was
set to end in three months and at the time of the trial court’s judgment, his spousal
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support obligation had ended. Thus, the trial court did not abuse its discretion by not
deducting the spousal support payment from appellant’s gross income.
{¶38} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
{¶39} Appellant’s third assignment of error states:
THE TRIAL COURT AND THE MAGISTRATE ABUSED THEIR
DISCRETION BY FAILING TO PROPERLY CREDIT APPELLANT FOR
THE DEBT APPELLEE OWED TO APPELLANT AND DISCHARGED
THROUGH BANKRUPTCY.
{¶40} Relevant to this assignment of error, the magistrate and the trial court
found that in 2007, prior to the parties’ marriage, appellant loaned appellee $90,000
to purchase a house on Pearl Street. Appellee signed a cognovit note for the loan.
Appellee never made a payment on the note. In 2013, appellant received a judgment
in common pleas court on the cognovit note for $90,000, plus interest. Appellant
then filed a complaint in foreclosure seeking the sale of the Pearl Street property.
Next, appellee filed for Chapter 7 bankruptcy and listed the debt owed to appellant as
$90,000 secured debt and $30,000 unsecured debt. Appellant argued at the divorce
trial that appellee engaged in financial misconduct by discharging the unsecured
portion of the debt in bankruptcy.
{¶41} In this assignment of error, appellant claims the trial court failed to
credit him for a debt that appellee discharged through bankruptcy while the divorce
was pending. Appellant asserts that appellee discharged more than $30,000 in debt
owed to him stemming from a judgment obtained by him in common pleas court.
Appellant contends appellee engaged in financial misconduct by discharging the debt
in order to escape a penalty in the divorce proceedings. Therefore, he claims the
court should have created an offset in his favor in the amount of $30,000.
{¶42} An appellate court will not disturb a trial court's finding regarding
financial misconduct absent an abuse of discretion. Carpenter v. Carpenter, 7th Dist.
No. 06-NO-331, 2007-Ohio-1238.
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{¶43} R.C. 3105.171(E)(3) provides guidance on financial misconduct during
a marriage:
If a spouse has engaged in financial misconduct, including, but not
limited to, the dissipation, destruction, concealment, or fraudulent
disposition of assets, the court may compensate the offended spouse
with a distributive award or with a greater award of marital property.
{¶44} The burden of proving financial misconduct for purposes of R.C.
3105.171(E)(3) is on the complaining spouse. Jacobs v. Jacobs, 4th Dist. No.
02CA2846, 2003-Ohio-3466, at ¶ 25. Financial misconduct implies that there was
some type of wrongdoing by the offending spouse whereby that spouse will either
profit from the misconduct or intentionally defeat the other spouse's distribution of
marital assets. Wideman v. Wideman, 6th Dist. No. WD-02-030, 2003-Ohio-1858, at
¶ 34.
{¶45} The trial court did not abuse its discretion by finding no financial
misconduct and by not awarding appellant a corresponding credit.
{¶46} Appellant testified that while the parties were dating, he purchased the
Pearl Street property and put the title in appellee’s name. (2/27/15 Tr. 169). He paid
the entire $91,000 purchase price by writing a check for that amount. (2/27/15 Tr.
169-170). Appellee signed a promissory note to pay appellant back for the purchase
of the property. (2/27/15 Tr. 170). Appellee, however, never paid him back. (2/27/15
Tr. 170).
{¶47} While the divorce was pending, appellant sued appellee and received a
judgment on the promissory note. (2/27/15 Tr. 170). Appellee then filed for
bankruptcy. (2/27/15 Tr. 170).
{¶48} Appellant testified that, now that the bankruptcy was concluded, he
would be receiving the Pearl Street property worth $90,000, which was the appraised
value. (2/27/15 Tr. 171). But he would not receive the $30,000 in interest, which his
judgment reflected appellee owed him. (2/27/15 Tr. 172). Appellant testified he
believed he deserved a credit for that amount. (2/27/15 Tr. 173).
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{¶49} Appellee testified that she never made a payment to appellant for the
Pearl Street house and he never asked her to make a payment. (3/3/15 Tr. 87). She
stated that once appellant received a judgment on the note, she included it in her
bankruptcy because she could not afford to pay it. (3/3/15 Tr. 88).
{¶50} Appellant admitted that he would now receive the Pearl Street property
worth $90,000 and appellee would have no right to it. Moreover, appellant never
required appellee to make a payment on the note while the parties were married.
Presumably, had they remained married, appellant would never have collected on the
note. The court’s decision left the parties in the same position they would have been
had appellant never purchased the property for appellee in the first place. By way of
the bankruptcy, appellant was restored to the same position he would have been in
had he not given the property to appellee in the first place. Thus, we cannot conclude
that the trial court abused its discretion in finding no financial misconduct and in
deciding not to award appellant a credit in this matter.
{¶51} Accordingly, appellant’s third assignment of error is without merit and is
overruled.
{¶52} Appellant’s fourth assignment of error states:
THE TRIAL COURT AND THE MAGISTRATE ABUSED THEIR
DISCRETION BY IMPROPERLY CREDITING CERTAIN PIECES OF
PERSONAL PROPERTY AS BEING MARITAL AND IMPROPERLY
CREDITING THEIR VALUE, SPECIFICALLY INCLUDING A JUKEBOX
AND FIREARMS.
{¶53} The magistrate found that appellant purchased a jukebox for $8,500
shortly before the parties separated. The magistrate found the jukebox to be marital
property in appellant’s possession.
{¶54} On appellant’s objection, the trial court found appellant failed to prove
the jukebox was his separate property. The court noted that appellant claimed he
sold the jukebox to “Lou” on December 8, 2012, which was before the parties
separated. Therefore, the court found the jukebox was marital property and appellant
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was responsible for it even if he sold it as he claimed.
{¶55} Appellant asserts that the trial court ignored the testimony and evidence
that the jukebox was sold on December 8, 2012, during the marriage. He contends
the court abused its discretion by imputing the value of the jukebox as a marital asset
against him. Appellant claims that while he does presently own a jukebox, he
purchased it after the parties separated.
{¶56} We review a trial court's decision designating property as either a
marital asset or separate property for abuse of discretion. Knox v. Knox, 7th Dist.
No. 04 JE 24, 2006-Ohio-1154, ¶ 47.
{¶57} As to the jukebox, appellant testified he purchased a 1955 Seeburg
jukebox in 2011, from someone named “Lou.” (2/27/15 Tr. 192-193). Appellant
testified that he no longer had that particular jukebox in his possession. (2/27/15 Tr.
194). He testified that he sold that juke box back to Lou on December 8, 2012
(before the parties separated). In support of this testimony, appellant submitted a
handwritten receipt with the name “Unique Music Machines” written on the top and
stating “1 1955 fully * * *& Juke Box Paid $8,500 CASH.” (Pl. Ex. 23).
{¶58} Appellant then testified that he purchased another jukebox from Lou in
November 2014 (after the parties separated). (2/27/15 Tr. 254). He also stated that
the records in the jukebox came with it. (2/27/15 Tr. 255).
{¶59} To the contrary, appellee testified that she saw the original Seeburg
jukebox in appellant’s garage less than a month before the trial. (3/3/15 Tr. 68-69).
She stated that she got a good look at the jukebox and it looked exactly the same as
the one they had purchased during the marriage. (3/3/15 Tr. 69). Moreover, she
stated that she had picked out the music that came with the original jukebox and
when she looked at the one in appellant’s garage it was the same music. (3/3/15 Tr.
69).
{¶60} Appellant and appellee presented conflicting testimony on whether the
jukebox in appellant’s garage was the same jukebox purchased during the marriage.
Appellant did present a receipt that he claims supported his testimony that he sold
the marital jukebox. But the receipt is handwritten on a generic blank receipt page.
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And while it lists the amount of $8,500 cash, it does not say whether the jukebox was
purchased from appellant or whether appellant purchased another jukebox for that
amount. Thus, it was within the magistrate’s and court’s discretion to give the receipt
little weight. Therefore, this issue is one of credibility.
{¶61} Appellant testified he sold the marital jukebox. Appellee testified she
recently saw the marital jukebox in appellant’s garage. The magistrate, as the fact-
finder, was in the best position to watch the witnesses and observe their demeanor,
gestures, and voice inflections and to utilize these observations in weighing
credibility. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
1273 (1984). Given the conflicting testimony and our deferral to the trier of fact on
credibility issues, we conclude that the trial court did not abuse its discretion in finding
the jukebox to be marital property.
{¶62} The trial court also determined that nine guns were marital property
worth $8,600.
{¶63} In his findings, the magistrate acknowledged that Christopher Toy,
appellant’s friend and employee, testified that six of the nine guns in question
belonged to him, although they were kept at the marital home. The magistrate found
Toy’s testimony was vague as to when he purchased them and his explanation as to
why he kept the guns at appellant’s home was unconvincing. The magistrate further
found Toy’s testimony was tainted by his personal and professional relationship with
appellant. Therefore, the magistrate found all nine of the guns were marital property
with a total value of $8,600.
{¶64} In considering appellant’s objection, the trial court found that Toy was
unable to provide many details regarding the six guns in question because he buys
guns “on a whim” from friends and garage sales. The court noted that even appellant
acknowledged that Toy’s testimony was confusing in at least one respect. And the
court noted that although Toy testified that he kept “his” guns in a gun safe at the
parties’ marital home, neither the gun safe nor its contents appeared on the inventory
and appraisal of the parties’ personal property. The court further pointed out that
appellee testified that all nine guns were in the marital home when she lived there
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and all of the guns were marital. Moreover, the court found that appellee’s testimony
undermined Toy’s testimony because she removed one of the guns from the marital
home that Toy claimed to have given to his brother.
{¶65} As to the guns’ value, the trial court pointed to Thomas Couche’s
testimony that he is a police officer and firearms instructor. The court noted that
Couche testified as to the steps he took to value the nine guns.
{¶66} Therefore, the trial court overruled appellant’s objection and determined
that the magistrate correctly determined the facts and applied the law.
{¶67} Appellant urges this determination was in error in two respects. First,
he asserts that both he and Christopher Toy testified that six of the nine guns
belonged to Toy who stored them in appellant’s gun safe and, therefore, those six
guns were not marital property.
{¶68} Appellant’s friend and employee, Christopher Toy, testified that of the
nine guns appellee claimed were marital property, six of them belonged to him. (Def.
Ex. 15, 2/27/15 Tr. 49). Specifically, Toy identified a Teddy Roosevelt 30-30, a 700
Remington, a 12-gauge shotgun, a Winchester 16-gauge double barrel, a Rock
Island Armory, and a “little .22” as belonging to him. (2/27/15 Tr. 44-48).
{¶69} When asked why he kept his guns at appellant’s house, Toy stated,
“[b]ecause I’m married and I don’t like leaving guns laying around my house.”
(2/27/15 Tr. 50). But he also stated that he did keep two guns at his house that he
used for concealed carry. (2/27/15 Tr. 50).
{¶70} Toy testified that he purchased the Teddy Roosevelt gun a year to a-
year-and-a-half ago. (2/27/15 Tr. 58). He stated he bought the 12-gauge shotgun
two years prior. (2/27/15 Tr. 46). Toy testified that he had acquired the Winchester
16-gauge double barrel a year ago after it was traded to his brother. (2/27/15 Tr. 46-
47, 60). And he testified that he purchased the Rock Island Armory about two years
ago. (2/27/15 Tr. 47-48). Toy did not have receipts or other proof of purchase for
any of the guns. (2/27/15 Tr. 61-62).
{¶71} Appellant testified that of the nine guns that appellee claimed as marital
property, only three of them belonged to him. (2/27/15 Tr. 187). He identified a
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Model 2B2 ultra, a Colt .357, and a Colt .22 as belonging to him. (2/27/15 Tr. 188).
Appellant agreed that these three guns were marital property. (2/27/15 Tr. 189). The
other six guns, appellant testified, belonged to Toy. (2/27/15 Tr. 188).
{¶72} Appellee testified that when she left the marital residence, she took the
guns with her. (3/3/15 Tr. 54). Appellant also acknowledged that on February 4,
2013, he filed a motion to compel appellee to return the guns to him. (2/27/15 Tr.
267-268). However, the motion did not identify any specific guns nor did it state that
any of the guns belonged to anyone other than appellant. (2/27/15 Tr. 268).
Appellee testified she returned the guns, including the Winchester 16-gauge, to
appellant within a week of receiving the motion. (3/3/15 Tr. 55, 56-57).
{¶73} Appellant stated that some of Toy’s dates were “off.” (2/27/15 Tr. 271).
He stated that Toy was “off” by a whole year as to when he acquired the Winchester
16-gauge from his brother. (2/27/15 Tr. 272). When asked then if he agreed that
Toy’s testimony was “quite questionable” appellant responded, “Yes, I do.” (2/27/15
Tr. 273).
{¶74} Appellee stated that during the course of the marriage she was never
told that any of the guns did not belong to her and appellant. (3/3/15 Tr. 55). She
stated she was with appellant when he purchased some of the guns. (3/3/15 Tr. 55).
She also stated that she and appellant went target shooting at Toy’s house and
brought all of the guns and Toy never mentioned that any of them belonged to him.
(3/3/15 Tr. 55-56).
{¶75} Once again the issue here is one of credibility. Whether the six guns
Toy claimed to own were in fact Toy’s or were instead marital property depended on
whether the magistrate and the trial court found Toy’s testimony to be credible. And
once again, the magistrate, as the fact-finder, was in the best position to weigh the
witnesses’ credibility. Seasons Coal Co., Inc., 10 Ohio St.3d at 80. It is significant
that Toy testified that he had just acquired the Winchester 16-gauge in the year prior
to trial, which would have been between March 2014 and March 2015. Yet the
Winchester was with the rest of the guns in February 2013. This likely hurt Toy’s
credibility and called into question whether his testimony was truthful.
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{¶76} Because this was a matter within the trial court’s discretion and given
the conflicting testimony, we cannot conclude that the court abused its discretion in
determining all nine guns to be marital property.
{¶77} Next, appellant asserts the court should not have accepted the
testimony of Thomas Couche, appellee’s boyfriend, as to the value of the guns.
{¶78} A trial court's valuation of marital assets will not be reversed absent an
abuse of discretion. Callender v. Callender, 7th Dist. No. 03-CA-790, 2004-Ohio-
1382, ¶ 9.
{¶79} Appellee’s boyfriend, Thomas Couche, is a detective-sergeant police
officer and firearms instructor for a local police department. (3/3/15 Tr. 8). As part of
his duties, Couche is in charge of trading/selling guns that are seized by the police
department and using the money for other purposes at the police department.
(3/3/15 Tr. 8). It is left up to his discretion to get a fair price on the guns. (3/3/15 Tr.
8). Based on his experience, Couche considers the guns’ condition and what their
value is. (3/3/15 Tr. 10).
{¶80} Couche testified appellee brought the guns from the marital home and
stored them in his gun safe. (3/3/15 Tr. 10). In response to appellant’s motion to
return the guns, Couche suggested to appellee that they should photograph and
inventory the guns before returning them to appellant. (3/3/15 Tr. 11). Couche
stated that he personally examined each of the nine guns. (3/3/15 Tr. 12). Couche
then valued each gun individually. (3/3/15 Tr. 17-18; Def. Ex. 22). He gave the guns
a total value of $8,600. (Def. Ex. 22).
{¶81} Appellant testified that the total value of the three guns that he admitted
were his was $2,450. (2/27/15 Tr. 188-189). These same three guns Couche valued
at $3,300. (Def. Ex. 22).
{¶82} There is no indication that the trial court abused its discretion in
accepting Couche’s values on the guns. Couche is a police officer and firearms
instructor who determines the values of firearms as part of his job. He personally
examined each of the guns in question before valuing it. Appellant did not offer an
opinion on the value of the six guns he claimed not to own. So for those six guns,
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Couche’s valuation was the only evidence the trial court had with which to value the
guns. And as to the three guns appellant agreed were marital property, the total
difference in value between what Couche valued them at and what appellant opined
they were worth was only $850. Thus, the trial court acted within its discretion in
accepting Couche’s value of the guns.
{¶83} Accordingly, appellant’s fourth assignment of error is without merit and
is overruled.
{¶84} Appellant’s fifth assignment of error states:
THE TRIAL COURT AND THE MAGISTRATE ABUSED THEIR
DISCRETION BY IMPROPERLY VALUING A CERTAIN PIECE OF
REAL PROPERTY LOCATED IN THE STATE OF MICHIGAN.
{¶85} The magistrate, and then the trial court, determined that a parcel of real
property in Michigan was worth $7,600. It based this finding on the value listed on a
tax bill. The parties agreed that it is marital property.
{¶86} Appellant argues the valuation of the Michigan property was in error
because there was never an appraisal done and there was no agreement as to its
value. Appellant points to his own testimony that he purchased the property for
$12,000. Therefore, he claims it was error to value the property for less than
$12,000.
{¶87} As to the value of the Michigan property, appellee submitted a copy of
the tax record for the property. (Def. Ex. 17). The tax record listed the taxable value
of the property for the year 2013 as $7,561 and listed the assessed value for 2014 as
$7,600.
{¶88} Appellant testified that he did not agree with the value listed in the tax
records. (2/27/15 Tr. 139). He testified that he paid $12,000 for the property.
(2/27/15 Tr. 139). However, he had no proof of the purchase price and did not have
an appraisal of the property. (2/27/15 Tr. 140, 225).
{¶89} As stated above, we will not reverse the trial court’s valuation of marital
assets absent an abuse of discretion. Callender, supra. There is no indication here
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that the trial court abused its discretion in valuing the Michigan property. Appellant
testified that he paid $12,000 for the property but he had no documentation to
corroborate his testimony. Appellee submitted a copy of the tax records for the
property, which assessed it a value of $7,600. Neither party submitted a formal
appraisal. Given the limited evidence, the trial court acted within its discretion in
accepting the tax value as the value of the Michigan property.
{¶90} Accordingly, appellant’s fifth assignment of error is without merit and is
overruled.
{¶91} Appellant’s sixth assignment of error states:
THE TRIAL COURT AND THE MAGISTRATE ABUSED THEIR
DISCRETION BY ORDERING APPELLANT TO BE RESPONSIBLE
FOR DEFENDANT’S COST OF EVALUATING PLAINTIFF’S
BUSINESSES WITHOUT ANY TESTIMONY AS TO THE COST BASIS
OF THE WORK PERFORMED.
{¶92} The magistrate ordered appellant to pay the $7,700 incurred by
appellee to hire an expert to value appellant’s businesses. In so doing, the
magistrate reasoned that appellee clearly did not have the resources to pay this
expense and appellant clearly did have the resources to pay. Therefore, the
magistrate included this payment by appellant as part of the global settlement of
assets.
{¶93} On appellant’s objection, the trial court noted that the ability to pay was
a relevant consideration here. It further determined that the business evaluations
were necessary to determine the marital value of the businesses in this case.
Therefore, the trial court overruled appellant’s objection and adopted the magistrate’s
decision.
{¶94} In his final assignment of error, appellant claims the trial court erred in
ordering him to pay for appellee’s business valuation. He notes that the valuation
was not part of any court order and appellee did not present any evidence as to the
reasonableness of the cost she incurred. Appellant claims that without a
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determination as to the appropriateness of the cost and opportunity to cross examine
regarding the cost, it was an abuse of discretion for the court to order him to pay for
the valuation.
{¶95} R.C. 3105.73(A) provides that in a divorce 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.
{¶96} We will not reverse a trial court’s judgment awarding litigation expenses
absent an abuse of discretion. Hogan v. Hogan, 12th Dist. Nos. CA2007-12-137,
CA2007-12-141, 2008-Ohio-6571, ¶ 50.
{¶97} In this case, appellee submitted her bill from Hill, Barth, & King for the
cost of valuing appellant’s businesses. (3/3/15 Tr. 62; Def. Ex. 20). The total bill was
$7,700. (Def. Ex. 20).
{¶98} Appellant’s counsel cross-examined appellee about why she did not
submit this litigation expense earlier when appellant was ordered to pay expenses
incurred for appraising the parties real and personal property. (3/3/15 Tr. 106-108).
However, she had not yet hired a business valuation expert at that time. (3/3/15 Tr.
107-108).
{¶99} A trial court may consider the parties' relative ability to pay attorney
fees or litigation expenses when deciding what is equitable under the facts of a
particular case. Lewis v. Lewis, 7th Dist. Nos. 06 JE 49, 07 JE 27, 2008-Ohio-3342,
¶ 116. In this case, appellant was the sole income provider throughout the marriage.
Appellee now works only one or two days per week. Given that appellant is gainfully
self-employed, the trial court properly considered the parties’ relative ability to pay the
cost of the business valuation.
{¶100} Additionally, appellant claims he was not given the opportunity of
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cross examination on the issue of the cost of the valuation. But appellee submitted
her bill from her expert. (Def. Ex. 20). And appellant had the opportunity to cross
examine both appellee and her expert. Thus, appellant could have inquired to the
reasonableness of the cost of the valuation.
{¶101} Accordingly, appellant’s sixth assignment of error is without merit and
is overruled.
{¶102} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
DeGenaro, J., concurs.
Robb, P.J., concurs.