Zhuravlyov v. Bun ( 2020 )

[Cite as Zhuravlyov v. Bun, 2020-Ohio-4108.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
DENIS ZHURAVLYOV, : OPINION
Plaintiff-Appellee/ :
Cross-Appellant, CASE NO. 2019-L-102
:
- vs -
:
JEANNETTE BUN,
:
Defendant-Appellant/
Cross-Appellee. :
Appeal from the Lake County Court of Common Pleas, Domestic Relations Division,
Case No. 2016 DR 000384.
Judgment: Modified and affirmed as modified.
Jon D. Axelrod and Rochelle M. Hellier, Axelrod Law Office, 7976 Tyler Boulevard,
Mentor, OH 44060 (For Plaintiff-Appellee/Cross-Appellant).
Nicholas A. D’Angelo, Cannon & Aveni Co., LPA, 41 East Erie Street, Painesville, OH
44077 (For Defendant-Appellant/Cross-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant/Cross-Appellee, Jeannette Bun (“wife”) appeals from the trial
court’s judgment, partially adopting and modifying the magistrate’s decision.
Appellee/Cross-Appellant, Denis Zhuravlyov (“husband”), cross-appeals the same
judgment. For the reasons in this opinion, we modify and affirm as modified.
{¶2} The parties were married on March 3, 2008. Two children were born as
issue of the marriage; to wit: C.Z., DOB April 11, 2011; and A.Z., DOB April 19, 2015.
Husband filed a complaint for divorce on June 29, 2016. The matter was tried to the
magistrate and, on September 25, 2018, the magistrate filed his decision. Both parties
filed timely objections. The trial court sustained certain objections and overruled others.
Ultimately, the trial court adopted the magistrate’s decision in part and modified the
same in part. This appeal and cross-appeal follows. Wife assigns six errors for this
court’s review. The first provides:
{¶3} “The trial court erred in awarding custody of the minor children to
appellee.”
{¶4} In custody cases, “[t]he appellate court must keep in mind that the trial
court is better equipped to examine and weigh the evidence, determine the credibility of
the witnesses, and make decisions concerning custody.” Terry L. v. Eva E., 12th Dist.
Madison No. CA2006-05-019, 2007-Ohio-916, ¶9 (citation omitted). Accordingly, the
standard of review in custody cases is whether the trial court abused its discretion.
Brandt v. Brandt, 11th Dist. Geauga No. 2012-G-3064, 2012-Ohio-5932, ¶11,
citing Liston v. Liston, 11th Dist. Portage No. 2011-P-0068, 2012-Ohio-3031, ¶15. An
abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal
decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,
¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).
{¶5} The magistrate initially found the parties entered into a “split-custody”
agreement, i.e., C.Z. to reside with husband and A.Z. to reside with wife. A hearing on
the agreement was held during which testimony established wife was comfortable with
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the arrangement; husband, however, testified, he “did not want this.” Husband
ultimately objected to the magistrate’s decision adopting the agreement, asserting he
“reluctantly agreed” to the split-custody arrangement. He represented that he withdrew
his agreement and the trial court, in its judgment entry, acknowledged husband’s
hesitation to the arrangement during the hearing. The trial court considered each of the
R.C. 3109.04(F)(1) best-interest factors and concluded that, in light of all surrounding
circumstances, both children should reside together in the same household with
husband.
{¶6} The trial court pointed out that both parents have demonstrated certain
troubling tendencies. Husband is antagonistic toward wife and her family. Wife testified
husband is inflexible and difficult if she arrives to pick the children up early or drops
them off late. Moreover, husband appears controlling and complained that the children,
when with wife, are left unsupervised in the basement of the restaurant owned by wife’s
family. Alternatively, wife, in text messages and Facebook posts, used disparaging
remarks when referring to the couple’s son, stating in one that she “hates this creature”
and that he looks like a worm and “I hate worm.” (sic.) And, significantly, prior to
husband filing for divorce, wife left the country to visit Cambodia and other Asian
countries for three months without the children. During this time, the children resided
with husband and wife called very seldom (only two or three times) while abroad and,
when she called, she did not speak to the children.
{¶7} Further, the trial court was troubled by wife’s willingness to split the
siblings to live in different households at such young ages. Regarding this point, the
court observed the children “are far too young to have a normal sibling relationship
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fractured by their parents.” We conclude the trial court’s conclusion that splitting the
children between each parent would be contrary to their best interests was reasonable
and proper. Moreover, the trial court’s decision to allocate primary parental rights and
responsibilities to husband was appropriate under the circumstances because he works
from home and is therefore more accessible. We therefore discern no abuse of
discretion.
{¶8} Wife’s first assignment of error is without merit.
{¶9} Wife’s second assignment of error provides:
{¶10} “The trial court erred when valuing the marital residence of the parties.”
{¶11} Under this assigned error, wife asserts: (1) the trial court abused its
discretion when it accepted husband’s testimony regarding the marital home’s value,
which was obtained from the county auditor’s website, when husband later disavowed
that value; and (2) the trial court erred in failing to order the home sold. In support of
her argument, wife cites Tokles & Sons, Inc. v. Midwestern Indemnity Co., 65 Ohio
St.3d 621 (1992).
{¶12} In Tokles & Sons, the Supreme Court of Ohio held “[i]t is a general rule of
evidence that before one may testify as to his opinion on the value of property, one
must qualify as an expert.” Id. at paragraph one of the syllabus. The Court, however,
additionally held “[a]s an exception to the general rule, an owner is permitted to testify
concerning the value of his property without being qualified as an expert, because he is
presumed to be familiar with it from having purchased or dealt with it.” Id. at paragraph
two of the syllabus. See, also, Smith v. Padgett, 32 Ohio St. 3d 344, 348 (“There is no
logical basis for distinguishing between owners of freehold estates in land and owners
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of personal property, on the one hand, and owners of leasehold estates in land, on the
other. Because the owner-opinion rule applies to owners of both real and personal
property, it should apply as well to an owner of a leasehold estate.”) In this respect, the
parties were authorized to testify regarding their view of the property’s value.
{¶13} At the hearing, husband testified to his belief that the latest valuation from
the county auditor’s website (from March 2018) was an accurate appraisal of its value;
namely, $174,900. And wife offered a copy of a valuation from the website Trulia, which
listed the home’s value at $219,000. Husband also testified he paid approximately
$175,000 for the home. While husband did indicate he thought the auditor’s figure was
somewhat inflated, neither party sought a formal appraisal and, even though the
valuation is hearsay, wife did not object to the admission of the auditor’s valuation. We
therefore conclude the trial court did not abuse its discretion in accepting husband’s
testimony on the property’s value, regardless of the parties’ ostensible misgivings.
{¶14} Furthermore, wife, in conclusory fashion, asserts that because no agreed-
upon value was submitted to the court, the court should have ordered the sale of the
property. Husband testified he desired to remain in the marital home, and he was
willing to pay wife her share of the equity. He indicated that keeping the residence
would help maintain stability for the children and keep them in the school district with
minimal disruption. R.C. 3105.171(J)(2) permits a trial court to issue any orders it
deems equitable, “including a decree requiring the sale of real property.” Gills v. Gills,
11th Dist. Lake Nos. 93-L-191 and 93-L-194, 1994 WL 738499, *3 (Dec. 23, 1994). We
discern nothing inequitable in the trial court declining to order sale of the home.
{¶15} Wife’s second assignment of error lacks merit.
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{¶16} Wife’s third assigned error provides:
{¶17} “The trial court erred when it failed to award the appellant her attorney
fees as requested. Despite numerous findings of appellee’s actions which increased
the appellant’s costs for representation, the court[‘s] standard of review of a trial court’s
determination in regard to an award of attorney fees under R.C. 1345.09 is an abuse of
discretion.”
{¶18} Wife contends the trial court should have awarded her attorney fees due
to the disparity in the parties’ relative incomes (husband’s gross income is $86,000 per
year and wife’s imputed income is $17,264), and because, in her view, husband
needlessly protracted the proceedings in an effort to harm her “as much as possible.”
{¶19} Preliminarily, wife cites R.C. 1345.09 as the governing statute authorizing
attorney fees. R.C. 1345.09, however, addresses, inter alia, attorney fees associated
with violations of Ohio’s Consumer Sales Practices Act. It is therefore not applicable to
the underlying proceedings. R.C. 3105.73(A) is the proper statute and provides:
{¶20} In an action for divorce, dissolution, legal separation, or annulment
of marriage or an appeal of that 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.
{¶21} An appellate court reviews an award of attorney fees under an abuse of
discretion standard. Ivancic v. Enos, 11th Dist. Lake No. 2011-L-050, 2012-Ohio-3639,
¶70.
{¶22} In its judgment entry, the trial court adopted the magistrate’s denial of
attorney fees. The court determined “from the evidence adduced at trial [wife] has more
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than ample funds to pay her attorney through her parents.” Although wife’s parents are
not legally bound to fund her divorce litigation and wife’s income is significantly lower
than husband’s income, she testified that her parents subsidize her entire lifestyle. Wife
admitted her family paid some $5,000 for her three-month trip to Asia; further, her
parents allow her to stay in their home rent free and pay all of her expenses and bills.
And wife admitted that, over the course of the previous five and one-half years, her
parents gifted her some $67,000 “to use [on an] everyday basis.” We accordingly hold
that while wife’s parents are not legally obligated to pay wife’s attorney fees, the trial
court’s conclusion, that she is not entitled to attorney fees was reasonable and
supported by the record in this case.
{¶23} Wife’s third assignment of error is without merit.
{¶24} Wife’s fourth assignment of error states:
{¶25} “The trial court erred when it ordered appellant to pay one half of the
guardian ad litem fees incurred in this matter.”
{¶26} Initially, wife objected to the failure of the magistrate to address the issue
of guardian ad litem fees in his initial decision. The magistrate, however, in a
subsequent entry, did address those fees and ultimately split the same. Wife did not
object to this decision. It is well-settled that if a party fails to object to a conclusion of
law or finding of fact issued by a magistrate, the party is precluded from then raising the
issue for the first time on appeal. See, e.g., In re Komlanc, 11th Dist. Trumbull No.
2002-T-0067, 2003-Ohio-5227, ¶7. Accordingly, wife’s fourth assignment of error was
not properly preserved. Even if wife properly objected, however, the argument is
without merit.
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{¶27} Wife argues, without citation to authority, the trial court erred in splitting
the guardian ad litem fees because she was required to call upon the guardian ad litem
an inordinate amount due to issues with picking up and dropping off the children. The
record demonstrates that the parties filed a joint motion for the appointment of the
guardian ad litem. Even if wife felt compelled to contact the guardian ad litem, thereby
incurring greater fees, she has failed to establish the contact was due to any
questionable actions of husband. Wife jointly agreed with husband to utilize the
guardian ad litem and, it appears from her representations at trial, she utilized the
guardian ad litem rather frequently. In light of these points, we conclude the trial court’s
order that she pay half the fees was a reasonable exercise of its discretion.
{¶28} Wife’s fourth assignment of error lacks merit.
{¶29} Wife’s fifth assignment of error provides:
{¶30} “The trial court erred when it adopted the magistrate’s findings regarding
employability and imputation of wages ordering her to pay child support to the appellee
in this matter, as well as to pay other marital obligations.”
{¶31} Under this assignment of error, wife first asserts the trial court abused its
discretion when it imputed a full-time, minimum-wage annual income.
{¶32} Initially, the trial court did not abuse its discretion when it found wife was
voluntarily underemployed, triggering consideration of R.C. 3119.01(B)(17)(a) factors, to
impute income. The magistrate found that “there is nothing in the record to indicate that
[wife] is not capable of full-time employment.” He additionally found wife is in good
physical and mental health; moreover, even though wife voluntarily elects to work part-
time at her parents’ restaurant for $700 per month, she received a bachelor’s degree in
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business administration in 2011 and thus could arguably earn significantly more
pursuing an alternative career. The trial court also observed that even though the
parties originally planned for wife to work part-time during the marriage, the marriage
was over and thus that point was no longer relevant. There was no error in the
imputation of full-time, minimum-wage income.
{¶33} Wife next asserts the trial court erred in ordering her to pay child support
as well as ordering her to pay other marital obligations. Wife does not support her
conclusion relating to child support with any argumentation, in violation of App.R.
16(A)(7). It is not this court’s role to advance arguments on behalf of a party. State ex
rel. DeWine v. Deer Lake Mobile Park, Inc., 11th Dist. Geauga No. 2016-G-0077, 2017-
Ohio-1509, ¶27, citing App.R. 16(A)(7) (“[I]t is not this court’s function to make
appellants’ argument for them.”) We therefore need not address this issue.
{¶34} Similarly, wife simply claims husband sent her outstanding medical bills for
her to pay rather than to resolve these family debts and it was error for the court to
assign such debt to her. Wife does not specifically define what medical debts husband
sent her; and, even if we were to somehow divine the debts to which she is referring,
she admits they are family debts. In her objections to the magistrate’s decision, she
objected to the allocation of certain medical debts in a “two-thirds, one-third” division
based upon husband’s higher income. The magistrate, however, found all admitted
outstanding medical debts were incurred during the marriage and each party would be
responsible for half of the outstanding debt (day care expenses were split 2/3 husband,
1/3 wife). The trial court determined that obligating wife to one-third the outstanding
medical bills was not unreasonable or inequitable because such a proportional division
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roughly parallels the parties’ income disparity. Regardless of the inconsistency between
the decision and the objection, we see nothing unreasonable in the manner the trial
court addressed the objection. Thus, the trial court did not abuse its discretion.
{¶35} Wife’s fifth assignment of error lacks merit.
{¶36} Wife’s sixth and final assignment of error provides:
{¶37} “Whether the trial court abused its discretion by adopting the magistrate’s
recommendation regarding spousal support to be paid to appellant as to both amount
and duration.”
{¶38} Wife contends that the trial court erred in adopting the magistrate’s
decision that she receive $1,500 per month for a period of 27 months; according to her
objections, she requested $2,000 for a period of three years. She contends that, given
the vast disparity of the parties’ earnings and the 10-year duration of the marriage, the
requested amount was reasonable and would not unfairly burden husband.
{¶39} Pursuant to R.C. 3105.18(C), “[i]n 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” a non-exhaustive list of factors. In his decision,
the magistrate set forth the factors and fully discussed their applicability. The magistrate
then concluded:
{¶40} After considering all of the factors in Ohio Revised Code Section
3105.18(C) and the findings of fact outlined above, including but not
limited to the age of the parties, the length of the marriage, the
limited earning ability of [wife], the standard of living of the parties
during the marriage, the assets and expenses of the parties it is
determined the proper periodic amount of spousal support would be
[husband] paying to defendant the sum of $1,500.00 per month
effective October 1, 2018, for a period of 27 months.
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{¶41} It is acknowledged the income and expenses of the parties will not
allow either to maintain a lifestyle consistent with their lifestyle
when they lived together absent increases in income by both
parties. The duration of spousal support also considers the parties
have been living separate and apart since the spring or early
summer of 2016.
{¶42} Even though wife highlights the 10-year length of marriage, the trial court,
in adopting the magistrate’s decision, noted “the evidence set forth below shows the
parties actually lived together for only about half of the 10-year marriage: approximately
five years.” Further, approximately two of the 10 years were during the divorce
litigation. These points weigh against wife’s insistence that the formal duration of the
marriage is a salient factor militating in favor of an increase. And, while we recognize
the apparent income disparity between the parties, the record is also clear that wife’s
parents provide her with significant income and lifestyle assistance. Pursuant to R.C.
3105.18(C)(1)(a), a court shall consider the parties’ income from all sources. Further,
R.C. 3105.18(C)(1)(n), the court is obligated to consider “[a]ny other factor that the court
expressly finds to be relevant and equitable.” The income assistance of wife’s parents
was clearly an appropriate factor for the court to entertain in arriving at an equitable
spousal-support order.
{¶43} The magistrate expressly considered all the statutory factors in arriving at
its spousal-support calculation. Although wife requested a greater amount for a greater
duration, we nevertheless conclude the amount and length of the order was reasonable.
Moreover, it bears noting, the magistrate recognized that changes in income could
occur justifying modification of the amount; hence, the court reserved jurisdiction to
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revisit the issue and modify the award if the circumstances justify such action. Thus, the
trial court did not err in adopting the magistrate’s conclusion.
{¶44} Wife’s sixth assignment of error lacks merit.
{¶45} For his first assignment of error on cross-appeal, husband asserts:
{¶46} “The trial court abused its discretion by not acknowledging appellee’s
separate property.”
{¶47} Husband argues the trial court erred in failing to consider the non-marital
value of a vehicle ($6,000, according to the evidence) he used as a trade-in to purchase
the vehicle he possessed at the time of the hearing. Specifically, he asserts he bought
and paid off the trade-in prior to the marriage; as a result, he asserts he was entitled to
$6,000 non-marital-asset credit for the trade-in down payment on his current vehicle.
{¶48} R.C. 3105.171 requires trial courts to equitably divide separate and marital
assets in a divorce. R.C. 3105.171(A)(6)(a)(ii) provides that any personal property
acquired by one spouse prior to the marriage is separate property. Husband’s
testimony established his previous vehicle was separate property and thus the $6,000
trade-in was a specific, traceable amount to which he was entitled credit.
{¶49} Pursuant to the parties’ testimony and exhibits establishing fair-market
value of the current vehicles, the magistrate found that husband’s vehicle had a fair-
market value of $11,125; the magistrate further found wife’s vehicle had a fair-market
value of $12,450. Each vehicle was unencumbered, and the magistrate determined that
each party would retain their respective vehicle. No objections were advanced vis-à-vis
the vehicles’ valuation. Moreover, husband submitted an exhibit demonstrating he
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purchased his current vehicle for $22,417.01 and that the trade-in value of his former
vehicle was $6,000.
{¶50} In order to divide the marital value of the vehicles, the magistrate
determined the difference in value was $1,325. The magistrate consequently ordered
$662, half of $1,325, to be deducted from what husband owed wife. In light of
husband’s objection and assigned error, we conclude this calculation is erroneous.
{¶51} Husband testified he used the $6,000 trade-in as a down payment.
Moreover, husband supplied the court with supportive documentation demonstrating he
received a $6,000 trade-in allowance when he purchased his current vehicle, for which
he paid $22,417.01, in February 2014. Dividing $11,125 by $22,417.01 equals .496
(49.6%); hence, the vehicle had depreciated from February 2014 to June 2018, the date
the vehicles were valued for trial by 50.4%. Multiplying $6,000 by .496 equals $2,976 –
the pro-rata remaining value of husband’s separate-property investment. Accordingly,
the magistrate should have subtracted that amount from the fair-market value of
husband’s current vehicle ($11,125), which leaves $8,149. That amount then should be
subtracted from the value of wife’s vehicle ($12,450), to determine the difference, i.e.,
$4,301. Dividing that number in half yields $2,150.50. Accordingly, $2,150.50 should
be deducted from what husband owes wife.
{¶52} We point out that wife, in her brief, contests the value of husband’s current
vehicle; wife, however, does not assert the valuation was problematic in any specific
way, only that testimony relating to the vehicle was “convoluted.” Regardless, wife did
not take issue with the relative, fair-market values of the current vehicles in an objection
to the magistrate’s decision. In this respect, any argument relating to those values was
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waived. Moreover, wife does not argue that the $6,000 trade-in allowance was not
husband’s separate property. To the extent the magistrate possessed valuations of the
vehicles, possessed evidence of the purchase price of the current vehicle, and heard
uncontested testimony that the $6,000 was traceable, separate property, husband was
entitled to a $2,150.50 credit, pursuant to the above calculation, against what he owes
wife. We accordingly modify the trial court’s judgment to reflect this change.
{¶53} Husband’s first assignment of error on cross-appeal has merit.
{¶54} His second assignment of error provides:
{¶55} “The trial court abused its discretion by ordering appellee to divide a new
stock account after separation and also to assume marital debt in full that was acquired
post-separation.”
{¶56} With respect to the purportedly new stock account, husband testified that
he began a new job in August 2017, while he was married, but after the divorce was
filed. While he testified this account was worth $4,000, he did not specifically identify
when he started contributing to the account. Nevertheless, he maintains he is entitled
to those funds due to their accrual after the proceedings commenced. We do not agree.
{¶57} The duration of the marriage was from March 3, 2008 through May 2,
2018. In his decision, the magistrate identified the subject account to have a value of
$4,623 as of May 1, 2018. Because that account was funded with that amount during
the marriage, it was reasonably classified as marital property. The magistrate did not
err in splitting the same and the trial court properly adopted that conclusion.
{¶58} Next, husband asserts the trial court erred in requiring him to pay credit
card debts which were incurred since April 2016. He notes he testified that one credit
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card had a balance from a transfer of another card incurred prior to separation. The
factfinder may believe all, some, or none of the testimony of each witness appearing
before it. State v. Brown,11th Dist. Trumbull No.2002-T-0077, 2003-Ohio-7183, ¶53.
The magistrate and trial court were not required to find husband’s testimony credible;
moreover, even if the testimony were believed, the trial court was permitted to distribute
the debt in a manner it found reasonable and equitable. Given the difference in the
parties’ actual income and the evidence that husband had used a certain credit card to
fund the underlying lawsuit, we conclude the trial court did not abuse its discretion in
allocating the debt.
{¶59} Similarly, husband complains the trial court erred in awarding half the
equity in the marital home, yet failing to offset its award in light of the new furnace and
air conditioner that was installed. Again, the trial court did not abuse its discretion when
it ordered wife receive half the equity in the residence because the award can be
reasonably deemed equitable.
{¶60} Husband’s second assignment of error on cross-appeal lacks merit.
{¶61} Husband’s third assignment of error asserts:
{¶62} “The trial court abused its discretion by disregarding evidence that
appellant concealed marital assets.”
{¶63} Husband contends the trial court erred in failing to consider evidence that
wife received money during the marriage and sending it to Cambodia; he further asserts
the court similarly erred when it did not address land wife allegedly owns in Cambodia.
We recognize husband testified to each of these points. Still, as previously
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emphasized, the trial court was not obligated to deem any testimony relating to these
points as inherently credible. We decline to find an abuse of discretion.
{¶64} Husband’s third assignment of error on cross-appeal lacks merit.
{¶65} Husband’s fourth assignment of error provides:
{¶66} “The trial court abused its discretion by disregarding the magistrate’s
decision that appellee is not in possession of the personal property.”
{¶67} Husband’s argument is not entirely clear. He apparently asserts the trial
court erred by disregarding the magistrate’s caveat that “it is not clear whether
[husband] possesses all of the property * * *” wife claims to be her personal property.
The trial court, however, ordered that wife “shall be provided four hours to be in the
marital residence to retrieve her personal property identified on Pages 12 and 13 of the
Magistrate’s Decision.” The court further ordered a date set for the retrieval, i.e., April
30, 2019. Husband was restrained from “selling, destroying, moving, or damaging
[wife’s] personal property” set forth in the magistrate’s decision. To the extent this
transaction occurred, and wife obtained all the property set forth in the magistrate’s
decision, it would appear the concerns raised under this alleged error are moot.
{¶68} Husband’s fourth assignment of error on cross-appeal lacks merit.
{¶69} We shall address husband’s fifth and sixth assignments of error together.
They provide:
{¶70} “[5.] The trial court abused its discretion by imputing appellant to minimum
wage when there was evidence that she was capable of earning more income which
resulted in an incorrect calculation of both child support and spousal support.
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{¶71} “[6.] The trial court abused its discretion by imputing appellant to minimum
wage despite evidence that her income was highly intermingled with her parents[‘.]”
{¶72} As discussed under wife’s fifth assignment or error, the trial court did not
err in imputing full-time, minimum-wage income to wife even though her actual income
to which she testified was much lower. Appellant argues, however, the trial court erred
in adopting the magistrate’s conclusion because (1) wife possesses a bachelor’s degree
in business administration and is in good health and able to work full time; and (2) her
parents provide her significant financial support and wife’s income is intermingled with
theirs.
{¶73} With respect to the first issue, we recognize that, theoretically, wife may
be able to earn an income significantly greater than minimum wage in an abstract
employment scenario utilizing her educational credentials. Still, the evidence did not
indicate wife had sought, let alone obtained, any employment associated with her
educational background; further, even though there may be ample employment
opportunities for one with a bachelor’s degree in business administration, no evidence
was received regarding what those might be and what a reasonable entry-level
employee might earn. In the absence of any evidence of what wife might be able to
earn, imputation of full-time, minimum wage was equitable. We discern no error.
{¶74} Regarding the second issue, even though wife receives significant
financial support from her parents, her job status at the time of the hearing was that of a
part-time employee at her parents’ restaurant, where she purportedly earned much less
than minimum wage. While wife’s parents certainly provided her with monetary and
other support, her parents’ testimony indicated the money, which wife received when
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requested, is a gift. And, while this does not necessarily preclude it being considered
income, the monetary gifts and the income intermingling do not necessarily imply that
the trial court’s imputation of full-time, minimum-wage income was improper and
inequitable. Accepting husband’s argument would require the trial court to engage in
guesswork to determine the full nature of wife’s parents’ monetary contribution to her
lifestyle. Under the circumstances, we decline to find error.
{¶75} Husband’s fifth and sixth assignments of error on cross-appeal are without
merit.
{¶76} Husband’s seventh assignment of error provides:
{¶77} “The trial court abused its discretion by awarding spousal support based
on tax consequences in 2018 and not adjusting accordingly for the tax consequences in
2019.”
{¶78} Appellant argues the trial court erred in not recalculating its spousal
support award in light of the apparent changes in tax laws from 2018, when the
magistrate’s decision was issued, to 2019, when the court’s judgment was entered.
{¶79} In his objection to the magistrate’s decision, husband asserted:
{¶80} The magistrate’s decision discusses spousal support as it relates to
tax deductions and the benefit to [husband] if the case was
concluded by December 31, 2018. However, the magistrate’s
decision is silent as to if the case was not concluded prior to
December 31, 2018. In addition, the magistrate’s decision
indicates that spousal support would be a tax deduction for
[husband] then later goes on to say that neither party presented
expert testimony as to the tax implications of spousal support.
{¶81} The foregoing objection does not assert any argument as to how the
actual tax implications will harm or benefit husband if the judgment is issued after
December 31, 2018; and, it does not request the court to recalculate the support order if
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its judgment is issued after December 31, 2018. In light of the objection, the trial court
observed it is up to a party, not the court, to present argumentation as to how the tax act
changes impacts spousal support for 2019. We do not find error in the court’s
conclusion. Without some evidence regarding potential tax consequences, the court
had nothing before it upon which to rule.
{¶82} Husband’s seventh assignment on cross-appeal is without merit.
{¶83} For his eighth assignment of error, husband asserts:
{¶84} “The trial court abused its discretion when it set up a visitation schedule
that is not in the best interests of the minor children.”
{¶85} Husband argues the trial court’s modification of the parenting-time
schedule is not in the best interest of the children. He asserts the new schedule
requires the older child to travel 50 miles one way on Sunday evening and then travel
50 miles back early Monday morning. He maintains neither party requested the
schedule, which was crafted by the court, and because it is more difficult for the parties
to follow, it is not in the children’s best interest.
{¶86} While we agree the schedule issued by the court is more complicated than
the split-custody arrangement and perhaps more burdensome on the parties, this does
not imply it is against the children’s best interest. The trial court was troubled by the
split-custody arrangement because it separated the siblings for too great a period. The
court seemed most interested in making certain that the children should be raised in the
same household as much as practicable. While the schedule created by the court is
somewhat involved in the sense that it requires more traveling for the parties might
prefer, it serves the ultimate purpose of placing the children’s interests first. We
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acknowledge there may be better arrangements available to the parties that also
primarily serve the children’s best interests; the parties, however, were unable to come
to a mutual agreement that could meet both their interests as well as serve the
children’s best interests. Under the circumstances, we discern no abuse of discretion in
the schedule ordered by the court.
{¶87} Husband’s eighth assignment of error on cross appeal lacks merit.
{¶88} Husband’s ninth and final assignment of error provides:
{¶89} “The trial court abused its discretion by allocating to appellant to claim one
of the parties’ minor children as a dependent despite her tax situation and child support
payments.”
{¶90} Husband contends the trial court erred by allowing wife to claim one of the
minor children without considering relevant factors under R.C. 3119.82. Appellant failed
to raise this issue as an objection to the magistrate’s decision and, as a result, he
cannot raise it for the first time on appeal. See Komlanc, supra. This assigned error,
therefore, is not properly before this court. Even if it was properly raised, however, the
magistrate’s decision indicates R.C. 3119.82 was considered. The magistrate
concluded: “After considering Ohio Revised Code Section 3119.82, [husband] shall
receive the tax credit for [C.Z.] and [wife] shall receive the tax credit for [A.Z.]” Although
the magistrate did not elaborate on the nature of its consideration, the decision reflects
the statute was not neglected.
{¶91} Husband’s final assignment of error on cross-appeal is without merit.
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{¶92} For the reasons discussed in this opinion, the judgment of the Lake
County Court of Common Pleas, Domestic Relations Division, is modified and affirmed
as modified.
THOMAS R. WRIGHT, J.,
MARY JANE TRAPP, J.,
concur.
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