Ghanayem v. Ghanayem , 2020 Ohio 423 ( 2020 )

[Cite as Ghanayem v. Ghanayem, 2020-Ohio-423.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
ANNALISA M. GHANAYEM, :
Appellee and Cross-Appellant, : CASE NOS. CA2018-12-138
CA2018-12-142
:
- vs - OPINION
: 2/10/2020
DARREN W. GHANAYEM, :
Appellant and Cross-Appellee. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 16DR39199
Diehl & Hubbell, LLC, Martin E. Hubbell, 304 East Warren Street, Lebanon, Ohio 45036, for
appellee and cross-appellant
John D. Smith Co., LPA, John D. Smith, Andrew P. Meier, 140 North Main Street, Suite B,
Springboro, Ohio 45066, for appellant and cross-appellee
RINGLAND, P.J.
{¶ 1} Appellant/Cross-appellee, Darren Ghanayem ("Husband"), appeals from a
decision of the Warren County Court of Common Pleas, Domestic Relations Division,
following his divorce from appellee/cross-appellant, Annalisa Ghanayem ("Wife"). Wife also
appeals from the trial court's decision. For the reasons detailed below, we affirm.
{¶ 2} Husband and Wife were married in 2000 and had one child born during the
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marriage. Husband is a corporate executive and the sole income provider for the family for a
number of years. Though it is not the sole issue raised in this appeal, this dispute, in large
part, concerns Husband's compensation structure and the calculation of his support
obligations.
{¶ 3} Prior to the marriage, Husband worked for several companies, earning both
income and retirement benefits that are contested in this appeal. In 2006, Husband began
working for Anthem, Inc. ("Anthem") and the family moved to California. The parties
remained in California until 2015 when Husband was transferred to another position within
the company in Ohio.
{¶ 4} In 2016, Husband interviewed for and subsequently accepted a position as
Chief Information Officer ("CIO") with WellCare Health Plans, Inc. ("WellCare"). The position
with WellCare required Husband to relocate to Florida. The family initially prepared to move
with Husband, but ultimately Wife expressed her desire to stay in Ohio with their daughter.
These divorce proceedings followed. A final hearing was held before the trial court on May
21, 2018.
{¶ 5} During the hearing, the parties argued about Husband's income structure. In
relevant part, WellCare compensates Husband through these three sources: (1) his salary,
(2) a Short Term Incentive ("STI") bonus, and (3) Long Term Incentive Program ("LTIP").
{¶ 6} The calculation of Husband's STI bonus is done by WellCare's compensation
committee based on the achievement of certain performance objectives. The target rate for
the STI bonus is 50 percent of Husband's annual base salary. In 2016, Husband earned a
$390,000 base salary, along with a $60,000 signing bonus. Since he had just begun,
Husband did not earn an STI bonus. In 2017, Husband earned $410,000 base salary and
received a prorated STI bonus of $254,000. In 2018, Husband earned a $425,000 base
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salary and received a $430,000 STI bonus.
{¶ 7} Unlike his salary and STI bonus, Husband's LTIP bonus is awarded in shares of
the company, a publicly traded entity. Husband's LTIP bonus is set at a target rate of 120
percent of his base pay, consisting of an award mix of "restricted stock, performance stock
units, and market stock units." Husband testified about two categories of LTIP benefits that
he receives. The first is Restricted Stock Units ("RSUs") that are subject to various vesting
schedules. The second category of LTIP is Performance Stock Units ("PSUs"). PSUs "cliff
vest" every three years, which means that the stocks are not "earned" until the company
metrics are calculated three years after the shares are "awarded."1 After three years, the
metrics are calculated, and the shares are either "earned" or "unearned."
{¶ 8} Husband explained that the vesting or award of RSUs and PSUs have tax
consequences. Each time an RSU vests, or a PSU is earned, Husband stated that he must
pay tax on the fair market value of the stock at the time of vesting. The company is allowed
to withhold some percentage of stock to cover a portion of the taxes, but according to
Husband, he is in a higher tax bracket and the amount withheld does not reflect the actual
amount owed.
{¶ 9} Husband further argued that, even though he is earning something of value
through the LTIP benefits, he does not have access to the funds in the LTIP account.
Husband testified that he is presently unable to sell the shares for at least two reasons. First,
Husband testified that, as an executive officer in his company, he is required to own stock in
the company at a value of two times his annual base salary. Husband must maintain that
level of stock ownership until he ends his employment with the company, or the company is
taken over. Second, Husband stated that in order to sell shares that exceed the minimum
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holding requirement, he must receive approval to sell from the compensation committee.
Husband testified that he is subject to blackout periods due to company policy. As of the
date of trial, Husband testified that he is subject to an indefinite blackout period because he
is part of a confidential company committee.
{¶ 10} From Wife's perspective, Husband's LTIP bonus is income to Husband and
therefore should be considered in an analysis for child support and spousal support. From
Husband's perspective, he argues: (1) this money is his post-divorce retirement, which
should not be divided, and (2) there is a logistical complexity to dividing these bonuses due to
tax and stock trading issues.
{¶ 11} The trial court issued three orders with respect to the LTIP benefits. In a June
18, 2018 decision, the trial court noted that it "heard argument about this program, but little
testimony." Nevertheless, having heard the arguments, the trial court found "there is truth in
both positions. It is income to Husband and it is money for another day, which is what a
retirement account is for." The trial court also noted:
[T]his long-term incentive program is cleverly designed and
drafted so as to both tie it to performance standards and at the
same time avoid funding limits and/or tax issues that constrain
"qualified" retirement plans.
Following its review of the evidence, the trial court concluded that the LTIP bonus should be
considered income for purposes of calculating spousal and child support.
{¶ 12} In an October 17, 2018 "Clarification" Entry, the trial court noted that the parties
disagreed on the specific language that should be included in the final judgment entry. The
trial court stated that Wife "is awarded 34% of the gross income Husband receives as part of
this long-term incentive bonus" as spousal support and "7% of the gross income Husband
1. The parties use differing terms for when PSUs are earned. During his testimony, Husband was adamant
against using the term "vest," instead preferring the term "accomplished." This court recognizes the distinction
that the RSUs "vest," while the PSUs are "earned" and will use those terms throughout the opinion.
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receives as part of this long-term incentive bonus" as child support. The trial court also
indicated that "Wife's interest shall terminate once the term of spousal support ends if
Husband's LTIP award is conditioned on continued employment after termination."
{¶ 13} Finally, in its November 9, 2018 final appealable order, the trial court found:
Husband is a participant in his company's long-term incentive
bonus program ("LTIP"). Effective March 1, 2016, and for as
long as Wife receives spousal support, she shall receive as
spousal support 34% of all gross income Husband receives in
this LTIP. This payment shall be made directly to Wife and not
through the CSEA. When forwarding Wife's share, Husband
shall also forward a copy of the total bonus to verify why he is
paying the amount he paid. All LTIP spousal support shall be
includable in Wife's gross income for income tax reporting
purposes, and therefore deductible by Husband.
Husband shall transfer Wife's interest to her as soon as
allowable, and into her separate account.
Additionally, or perhaps independently if spousal support has
terminated, Wife shall also receive, and as for child support, 7%
of the gross income Husband receives as part of this long-term
incentive bonus. The child support shall be paid in the same
manner as the spousal support provisions in this Section VII,
effective March 1, 2016. But this LTIP child support shall be paid
directly to Wife and not through the CSEA. This payment shall
not be taxable to [Wife], nor deductible by [Husband].
{¶ 14} The trial court then divided the marital property, established the parenting
schedule, and entered a final decree of divorce. Husband appeals the trial court's decision,
raising four assignments of error. Wife cross-appeals, raising two cross-assignments of
error.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT ERRED IN TREATING DARREN'S LTIP BENEFITS AS
INCOME FOR PURPOSES OF DETERMINING SPOUSAL AND CHILD SUPPORT.
{¶ 17} In his first assignment of error, Husband argues the trial court erred by including
his LTIP bonus in the calculation of his spousal and child support obligations. On appeal,
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Husband argues that his LTIP account is a "retirement" account that should be excluded from
the calculation of child and spousal support. Husband also raises a secondary argument
that, if the LTIP benefits are income for purposes of determining support, then the trial court
erred by failing to order a more specific methodology or calculation so that Wife can share
the tax consequences. We find Husband's argument to be without merit.
{¶ 18} A trial court has a statutory duty to base a spousal support order on a careful
and full balancing of the factors in R.C. 3105.18(C)(1). Kedanis v. Kedanis, 12th Dist. Butler
No. CA2012-01-015, 2012-Ohio-3533, ¶ 8. According to R.C. 3105.18(C)(1), "the court shall
consider" the statutory factors, such as income of the parties, earning abilities of the parties,
ages, duration of marriage, standard of living, education of parties, and assets. McCarty v.
McCarty, 12th Dist. Warren Nos. CA2016-07-055 and CA2016-07-056, 2017-Ohio-5852, ¶
17. A reviewing court will presume each factor was considered, absent evidence to the
contrary. Casper v. Casper, 12th Dist. Warren Nos. CA2012-12-128 and CA2012-12-129,
2013-Ohio-4329, ¶ 42.
{¶ 19} As to child support determinations, trial courts are required to include bonuses
as income. Ornelas v. Ornelas, 12th Dist. Warren No. CA2011-08-094, 2012-Ohio-4106, ¶
22. The version of R.C. 3119.01(C)(7) in effect at the time defines "gross income" as the
"total of all earned and unearned income from all sources during a calendar year, whether or
not the income is taxable, and includes income from salaries, wages, overtime pay, and
bonuses."2 Gross income does not include "nonrecurring or unsustainable cash flow items"
which are defined as income that a parent receives in any year, not to exceed three years
that the parent does not expect to receive on a regular basis. Id. at (C)(7)(e) and (C)(8).
{¶ 20} A trial court has broad discretion in determining spousal and child support
2. Effective March 28, 2019, the definition for gross income is found in R.C. 3119.01(C)(12) and (13).
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obligations, which will not be disturbed absent an abuse of discretion. Kedanis, 2012-Ohio-
3533 at ¶ 10; Grilliot-Saddler v. Saddler, 12th Dist. Warren No. CA2017-09-134, 2018-Ohio-
1689, ¶ 14.
{¶ 21} In this case, the trial court awarded Wife spousal support for 60 months based
on income Husband receives from his salary, STI bonus, and LTIP bonus. Husband's child
support obligation is also based on the income he receives from his salary, STI bonus, and
LTIP bonus. Aside from his arguments relating to child support raised in his second
assignment of error, Husband does not otherwise present argument with respect to the
calculation of support owed due to his salary and STI bonus. Instead, Husband's argument
is based on objection to the inclusion of his LTIP bonus in the calculation of the support
orders.
{¶ 22} Following review, we find the trial court did not err by including Husband's LTIP
bonus in the support obligation calculation. We begin by noting that Husband's description of
his LTIP account as a "retirement" account is unsupported by the record. As correctly noted
by the trial court, there was much argument on this topic, but little testimony. Husband did
not introduce the full LTIP plan into the record, but it is undisputed that the LTIP account is a
"non-qualified" plan. There are no minimum vesting or distribution requirements, as required
by qualified plans, nor is there a clearly articulated prohibition on assignment or alienation.
Though Husband characterizes the LTIP account as a retirement plan, the record does not
support a finding that the LTIP account is a "retirement" account in anything but a colloquial
sense of the term. In fact, Husband testified that he could theoretically sell 476 shares of
stock and continue to meet the minimum holding requirement but could not do so because he
is under a "blackout period." Contrary to Husband's argument otherwise, the LTIP bonus is
simply a bonus, which can appropriately be considered in the calculation of his support
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obligations. See Ornelas, 2012-Ohio-4106 at ¶ 46 (percentage of bonus allowable in spousal
support calculation); former R.C. 3119.01(C)(7) (bonus included in "gross income" in child
support calculation). As a result, we decline to adopt Husband's characterization of the LTIP
account as a "retirement" account that should be excluded from the support orders.
{¶ 23} Husband's secondary argument alleges the trial court erred by failing to order a
specific methodology to address the tax consequences of his LTIP bonus. Husband
maintains that he identified and proposed an appropriate method for addressing the tax
issues in his closing trial memorandum. In that memorandum, Husband argued that Wife
should only be entitled to "a percentage share of Husband's LTIP Benefits as they vest and
are tradable," under his proposed circumstances:
Wife should only receive benefits that actually vest and are
tradable during the period of spousal support;
Whatever percentage Wife should receive, she should be
responsible for her share of the upfront payment of income taxes
that are not satisfied by the shares sold by the company and
remitted to the Federal Government;
Wife should be responsible for her share of both FICA and
Medicare taxes that are taken out because those taxes are
wholly paid by Husband as "earned income" and would not be
payable by Wife as unearned income for payment of spousal
support;
Wife should be required to advance pay, as Husband does, her
share of all such taxes because they are incurred when vested
as opposed to incurred when the stocks are in fact traded at a
different price than the vesting price;
When the shares are sold to Wife's income from same as
payment of spousal support to her should be taxable to her and
deductible by Husband to the extent that any such taxes have
not yet been paid in accordance with the above; [sic]
Husband's obligation should earlier terminate on his or Wife's
death, Wife's remarriage or cohabitation.
{¶ 24} We find Husband's secondary argument is also without merit. Part of the
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confusion surrounding this matter is the way in which the parties characterize the LTIP bonus
and LTIP account. In his appellate brief, Husband cites this court's standards for reviewing a
property division, as opposed to the calculation of support obligations. This is ostensibly
because he views the LTIP account as his retirement plan or a separate property interest.
However, as noted above, the record does not support a finding that Husband's LTIP account
is a retirement plan. Rather, the LTIP bonus is appropriately considered "gross income" for
purposes of calculating Husband's support obligations.
{¶ 25} However, based on review of Husband's argument, there is perhaps one issue
that should be clarified and that is the distinction between the value of the shares in
Husband's LTIP account and the LTIP bonus that Husband receives each year that is
calculable in his support obligation. As noted above, Husband vests or earns more shares in
his LTIP account each year. When the RSUs vest, or the PSUs are earned, there is a
taxable event that Husband must account for. However, since Husband is purportedly not
selling those shares, it is possible that those shares could gain or decrease in value.
Pursuant to the trial court's order, Wife is entitled to 34 percent of the "gross income"
Husband receives as part of his LTIP bonus over the course of the spousal support order and
seven percent of the LTIP bonus for child support. We understand the trial court's order as
calculating the support obligations based on the LTIP bonus vested or earned each year.
We do not understand the trial court's order to suggest that Wife has a separate property
interest in the shares held in the LTIP account.
{¶ 26} With that in mind, we find the trial court did not abuse its discretion in the way it
ordered the support obligation. In this case, the trial court included Husband's LTIP bonus in
the calculation of his support obligations. Pursuant to that order Wife is entitled to 34 percent
of the gross income he receives each year that the spousal support order is in effect. The
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trial court ordered spousal support for a limited duration of 60 months. Consistent with
applicable law, the trial court ordered "[a]ll LTIP spousal support shall be included in Wife's
gross income for income tax reporting purposes, and therefore deductible by Husband." As
for child support, Wife is entitled to seven percent of the gross income Husband receives
each year as part of his LTIP bonus. Also consistent with applicable law, "[t]his payment
shall not be taxable to [Wife], nor deductible by [Husband]." Furthermore, with respect to
Husband's claim that the trial court failed to consider the tax implications, we note the trial
court found that "there was no evidence presented" on that topic. Having reviewed the
record, we agree with the trial court that no such implications were discussed aside from the
simple fact that Husband must, indeed, pay taxes when shares vest or are earned.
{¶ 27} Since the trial court did not error or abuse its discretion, we find Husband's first
assignment of error to be without merit. Therefore, Husband's first assignment of error is
overruled.
{¶ 28} Assignment of Error No. 2:
{¶ 29} THE TRIAL COURT ERRED IN "UNCAPPING" DARREN'S CHILD SUPPORT
OBLIGATION WHERE THERE WAS NO EVIDENCE TO SUPPORT AN UPWARD
DEVIATION AND ANNALISA HAS SUFFICIENT INCOME TO MEET THE CHILD'S NEEDS.
{¶ 30} In his second assignment of error, Husband alleges the trial court erred by
"uncapping" his child support obligation. We disagree.
{¶ 31} R.C. 3119.04 governs child support calculations when the combined gross
income of the parents exceeds $150,000 per year. Specifically, former R.C. 3119.04(B)
provides that if the combined gross income of both parents is greater than $150,000 per
year, the trial court "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 child and
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the parents.3
{¶ 32} Former R.C. 3119.04(B) eliminated the prior requirement that trial courts
extrapolate to determine the appropriate amount of child support when the combined gross
income of the parents exceeds $150,000. Grilliot-Saddler, 2018-Ohio-1689 at ¶ 16; Cyr v.
Cyr, 8th Dist. Cuyahoga No. 84255, 2005-Ohio-504, ¶ 53 (explaining the extrapolation
method). Former R.C. 3119.04(B) "does not prohibit trial courts from extrapolating, nor does
the $150,000 amount constitute a 'cap' that trial courts may not exceed." Grilliot-Saddler at ¶
14. In exercising its discretion, the trial court is required to consider the needs and standard
of living of both the parties' child and the parties themselves. Wolf v. Wolf, 12th Dist. Warren
No. CA2008-03-045, 2009-Ohio-1845, ¶ 38. Accordingly, "as long as the amount ordered is
not less than if the combined gross income of both parents was $ 150,000, the trial court
need not make any specific findings." Id.
{¶ 33} A decision regarding child support obligations falls within the discretion of the
trial court and will not be disturbed absent a showing of an abuse of discretion. Daniel v.
Hester, 12th Dist. Butler No. CA2016-02-037, 2016-Ohio-7543, ¶ 18.
{¶ 34} In calculating Husband's child support obligation, the trial court found it "would
be unjust and inappropriate and not in the best interests of the child to compute child support
as if the combined gross incomes are less than $150,000." Though the trial court did not
enter detailed findings in this regard, it was not required to as the amount of child support
awarded was not less than the amount of child support awarded for a combined gross
income of $150,000. Grilliot-Saddler at ¶ 18. Nevertheless, the trial court found the family
enjoyed a "lavish lifestyle" during the marriage. This finding is supported by the record, as
the parties' assets accumulated during the marriage include luxury vehicles, motorcycles,
3. Effective March 28, 2019, R.C. 3119.04 is no longer separated into subsections (A) and (B).
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four-wheelers, and expensive jewelry. Husband has earned a base salary of $390,000,
$410,000, and $425,000 from 2016-2018 and is entitled to STI bonuses of approximately 50
percent of his annual base salary and LTIP benefits discussed above. To the contrary,
Wife's imputed income is $34,250 per year. Wife remains in the marital home valued at
$625,000, while Husband purchased a home in St. Petersburg, Florida, which the trial court
valued at $850,000.
{¶ 35} Following review, we find the record plainly reflects that the needs and standard
of living of the child and the parties were considered in the calculation of Husband's child
support obligation. In light of the foregoing, we find that the trial court did not abuse its
discretion in ordering Husband to pay child support at $2,506.77 per month, along with seven
percent of his bonuses. Husband's second assignment of error is overruled.
{¶ 36} Assignment of Error No. 3:
{¶ 37} THE TRIAL COURT ERRED IN INCLUDING A 2% PROCESSING FEE ON
TEMPORARY SUPPORT OBLIGATIONS THAT DARREN PAID DIRECTLY TO ANNALISA.
{¶ 38} In his third assignment of error, Husband argues the trial court erred by
including a two percent processing fee for the temporary support obligation that he paid
directly to Wife. Wife agrees that no processing fees should be collected for any temporary
support paid directly to her but notes that the parties had not yet completed an audit to
determine if involvement by the Warren County Child Support Enforcement Agency ("CSEA")
will be necessary. Following review, we find Husband's argument is premature, or is based
on a misunderstanding of the trial court's order.4
4. Husband cites the trial court's June 18, 2018 decision, however the November 11, 2018 decree and final
appealable order states "[t]he parties shall conduct an audit of both child support and spousal support. If the
parties cannot agree, either may request an audit to be performed by the CSEA to determine the amount of
arrearages owed by Husband, for both child support and spousal support."
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{¶ 39} We note that R.C. 3119.27(A) mandates the imposition of a processing fee. It
has long been recognized that an administrative agency is entitled to compensation for
assuming the risks associated with the handling and disbursement of funds in proportion to
the amount of those funds and that a two percent fee is reasonable. Curran v. Kelly, 9th
Dist. Medina No. 10CA0139-M, 2012-Ohio-218, ¶ 13.
{¶ 40} In this case, Husband made direct payments to Wife for temporary support
owed during the pendency of the case. The trial court's final order directed the parties to
conduct an audit of both child support and spousal support. As conceded by Wife, "[i]t is
likely that if funds are owed by Husband he will satisfy that amount and CSEA collection will
not be necessary. In the event the parties are unable to agree, and the CSEA has to collect
funds from Husband, then a processing fee would be appropriate."
{¶ 41} Following review, we agree it would be inappropriate to charge a fee for money
that was not administered by the agency and had already been paid to Wife. However, Wife
explains that the audit has not been completed and therefore it is not known whether CSEA
will have any involvement in the processing of the temporary support obligations Husband
owed Wife. Since that issue is to be determined, it is prematurely raised. Following the
audit, if Husband has satisfied the amount due under the temporary order without CSEA
involvement, then he will not owe the processing fee. However, if CSEA is needed to collect
the funds, then Husband will owe the processing fee. Therefore, we overrule Husband's third
assignment of error.
{¶ 42} Assignment of Error No. 4:
{¶ 43} THE TRIAL COURT ERRED IN FAILING TO GRANT DARREN ADDITIONAL
PARENTING TIME DURING THE SUMMER MONTHS.
{¶ 44} In his fourth assignment of error, Husband alleges the trial court erred in its
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decision allocating parenting time. Specifically, Husband argues the trial court should have
allocated five weeks of summer parenting time instead of the two weeks ordered. We find no
merit to Husband's argument.
{¶ 45} A domestic relations court is vested with broad discretion in determining the
visitation rights of a nonresidential parent, and its decision will not be reversed absent an
abuse of discretion. Warman v. Warman, 12th Dist. Butler No. CA2016-08-170, 2017-Ohio-
7462, ¶ 7. In making this determination, the domestic relations court's primary concern is the
best interest of the child. Gray v. King, 12th Dist. Clermont No. CA2013-01-006, 2013-Ohio-
3085, ¶ 12.
{¶ 46} In establishing a specific parenting-time schedule, a trial court is required to
consider the factors set forth in R.C. 3109.051(D). Bristow v. Bristow, 12th Dist. Butler No.
CA2009-05-139, 2010-Ohio-3469, ¶ 16. The factors include, but are not limited to, (1) the
child's interaction and interrelationship with his or her parents, (2) the geographical location
and distance between the parents' respective homes, (3) the child and parents' available
time, including each parent's employment schedule, (4) the age of the child, (5) the child's
adjustment to his or her home, (6) the health and safety of the child, (7) the mental and
physical health of all the parties, (8) the parent more likely to honor and facilitate court-
approved parenting time rights or visitation and companionship rights, and (9) "any other
factor in the best interest of the child." R.C. 3109.051(D).
{¶ 47} The trial court found that J.G. loves her parents and her parents do a good job
of encouraging a relationship between each other. Both parents acknowledged that it is best
for J.G. to remain in her current school district. However, one major problem in allocating
parenting time is the fact that Wife resides in Ohio with J.G., while Husband now resides in
Florida. The central dispute is over the amount of time J.G. will spend with her father during
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the summer.
{¶ 48} The trial court found that it was in J.G.'s best interest to award Husband two
weeks of summer parenting time. In so doing, the trial court found "[w]hile there is a need for
[J.G.] to know her father, there is also a need for her to be with friends and involved in her
activities with school friends in Ohio, particularly now that she is entering high school. In the
absence of an agreement, the Court will require a 14-day stretch that begins on a Friday and
ends on a Friday, covering the last week of June and the first week of July."
{¶ 49} Following review, we find the trial court did not abuse its discretion in its order
regarding parenting time. We agree with the trial court that the difference in geographical
location requires substantial travel that interferes with activities and bonds that are valuable
to J.G. and are in her best interests. J.G. is doing very well academically and socially in Ohio
and looks forward to building deeper relationships with her friends and pursuing
extracurricular activities as she begins high school. We further note that, J.G., who was 14
years old at the time of trial, indicated to the trial court that she did not prefer to travel to
Florida often or for any significant length of time. It is often difficult in fashioning visitation
orders where, as here, the child is well cared for and is clearly bonded with both parents.
However, we agree with the trial court that five weeks in Florida away from her life in Ohio
would not be in her best interests. In this case, the trial court clearly engaged in a balancing
of the factors set forth in R.C. 3109.051(D) in coming to its final visitation order. In reviewing
that order, we do not find it to constitute an abuse of discretion. As a result, we overrule
Husband's fourth assignment of error.
{¶ 50} Cross-assignment of Error No. 1:
{¶ 51} THE TRIAL COURT ERRED WHEN IT FOUND HUSBAND ESTABLISHED A
SEPARATE PROPERTY INTEREST IN HIS RETIREMENT ACCOUNT.
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{¶ 52} In her first cross-assignment of error, Wife argues the trial court erred by finding
that Husband had a separate property interest in certain retirement accounts. Wife's
argument is without merit.
{¶ 53} Property division in a divorce proceeding is a two-step process that is subject to
two different standards of review. Grow v. Grow, 12th Dist. Butler Nos. CA2010-08-209,
CA2010-08-218, and CA2010-11-301, 2012-Ohio-1680, ¶ 11. Initially, pursuant to R.C.
3105.171(B), "the court shall * * * determine what constitutes marital property and what
constitutes separate property." An appellate court reviews the trial court's classification of
property or debt as marital or separate under the manifest-weight-of-the-evidence standard.
Oliver v. Oliver, 12th Dist. Butler No. CA2011-01-004, 2011-Ohio-6345, ¶ 8;
{¶ 54} After classifying the property as separate or marital, "the court shall disburse a
spouse's separate property to that spouse" and divide the marital property equally. R.C.
3105.171(C)(1) and (D). However, if the court finds an equal division would be inequitable,
then the court must divide the property in a manner it determines is equitable. R.C.
3105.171(C)(1); Roberts v. Roberts, 12th Dist. Clinton Nos. CA2012-07-015 and CA2012-07-
016, 2013-Ohio-1733, ¶ 34. The trial court is given broad discretion in fashioning a property
or debt division and will not be reversed absent an abuse of discretion. Williams v. Williams,
12th Dist. Warren No. CA2012-08-074, 2013-Ohio-3318, ¶ 54.
{¶ 55} As the dispute in this assignment of error relates to the determination of
whether Husband had a separate property interest in two of his retirement accounts, we
review the trial court's decision under the manifest weight standard.
{¶ 56} In this case, Husband had a 401(k) Savings Plan through his former
employment at Reynolds & Reynolds. Husband provided documentation that, as of March
31, 2000, the balance of that Plan was $58,532.81. The parties were married on May 18,
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2000. As of September 30, 2000, the balance of the Plan was $57,231.37. Husband
testified that the decrease in value was a result of market fluctuations.
{¶ 57} Husband also had a 401(k) Plan through his other former employment at
Access Systems. Husband began his employment prior to the marriage on August 16, 1999.
As of July 1, 2000, approximately two months after the marriage, the balance of the Plan was
$5,200.63. As of March 31, 2001, the balance in the 401(k) Plan was $10,224.95. On July
4, 2001 Husband began working for Anthem.
{¶ 58} After Husband left Access Systems, he maintained the 401(k) funds at Merrill
Lynch in two separate accounts, one relating to his employment with Reynolds & Reynolds
and one relating to his employment with Access Systems. On May 16, 2006, Husband
transferred the funds to an Ameriprise account. At the time of this transfer, the balance in
the account was $70,624.83. Husband testified that he did not make any contributions to or
withdrawals from these accounts. During trial, Husband testified that the current value of the
Ameriprise account was $112,000.
{¶ 59} On appeal, Wife argues that Husband failed to provide documentation
referencing an accurate account balance on the date of marriage and also that he placed
marital assets in the accounts. Wife also alleges that the trial court relied on inadmissible
hearsay and objected to Husband's testimony regarding the value of the account.
{¶ 60} Following review, we find the trial court's decision is supported by the manifest
weight of the evidence. As noted above, Husband introduced evidence as to his premarital
contributions to the relevant 401(k) and his testimony with regard to the value of the accounts
was permissible. There was some question as to whether marital property was comingled
with Husband's separate 401(k) plans following his separation from Anthem and Wife's
attorney inquired about past settlement negotiations in this matter. However, much of the
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confusion surrounding those issues was not substantially developed in the record, nor
effectively addressed on cross-examination. Furthermore, Wife's remaining arguments with
respect to the trial court hearing inadmissible hearsay are speculative and unpersuasive in
light of the evidence and testimony presented by Husband. As a result, we find the trial court
did not err in finding that Husband had a separate interest in the 401(k) accounts that he
contributed to prior to the marriage. Wife's first cross-assignment of error is overruled.
{¶ 61} Cross-assignment of Error No. 2:
{¶ 62} THE TRIAL COURT ERRED WHEN IT FAILED TO INCLUDE NECESSARY
LANGUAGE IN THE SPOUSAL SUPPORT AWARD.
{¶ 63} In her second cross-assignment of error, Wife claims the trial court erred by
failing to include necessary language in the spousal support award. Specifically, Wife argues
the trial court should have included language that "[i]t is the intent of the Court that Wife
receive 34% of all sources of Husband's income, however that is named, identified, or
described by Husband's employer." Wife alleges the language is necessary to protect her in
the event that Husband's employer "creatively calls his income something not currently
identified * * * or if his stock vesting date is creatively postponed until" after the five-year
spousal support term ends. However, we do not believe that language to be necessary in the
award of spousal support. In the event that Wife's concerns are realized and there is a
change in Husband's income structure, her recourse would be to file a motion to modify
support obligation. Benjelloun v. Benjelloun, 12th Dist. Butler No. CA2012-01-004, 2012-
Ohio-5353, ¶ 15. As a result, Wife's second cross-assignment of error is overruled.
{¶ 64} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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