Dick v. Dick , 2017 Ohio 1135 ( 2017 )

[Cite as Dick v. Dick, 2017-Ohio-1135.]
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
HEATHER A. DICK )
)
PLAINTIFF-APPELLANT/ )
CROSS-APPELLEE ) CASE NO. 15 MO 0017
)
VS. ) OPINION
)
BRENT E. DICK )
)
DEFENDANT-APPELLEE/ )
CROSS-APPELLANT )
CHARACTER OF PROCEEDINGS: Appeal from the Court of Common
Pleas, Domestic Division, Monroe
County, Ohio
Case No. 2012-249
JUDGMENT: Reversed in Part and Remanded.
APPEARANCES:
For Plaintiff-Appellant/Cross-Appellee Attorney Joseph Vavra
132 West Main Street
P.O. Box 430
St. Clairsville, Ohio 43950
For Defendant-Appellee/Cross-Appellant Attorney Eric Costine
136 West Main Street
St. Clairsville, Ohio 43950
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 24, 2017
[Cite as Dick v. Dick, 2017-Ohio-1135.]
DeGENARO, J.
{¶1} Both Heather and Brent Dick appeal the trial court's judgment. Heather
asserts two errors challenging the shared parenting plan and the valuation of Brent's
businesses. Brent also challenges the business valuations as well as the division of
marital debt. For the following reasons, the judgment of the trial court is reversed in
part and remanded.
Facts and Procedure
{¶2} The parties have two minor children; Heather is employed as an
elementary school teacher and Brent is a self-employed business owner. Heather
filed for divorce in August of 2012.
{¶3} Prior to trial, multiple hearings were held regarding temporary custody,
evidentiary issues, and claims regarding pre-marital assets. On August 27, 2012, the
trial court issued a temporary custody order creating a shared parenting arrangement
in which Heather and Brent were named co-residential parents. The children
exercised companionship time with Father on Sunday morning until Wednesday
morning and Mother on Wednesday after school until Sunday morning.
{¶4} During the marriage, Brent's parents transferred to him ownership in
two separate businesses: Dick's Furniture Store and Woodsfield Ace Hardware. Both
parties conceded and the trial court found that these two businesses were Brent's
separate property, except for the appreciation of those businesses during the course
of the marriage. The proceedings continued for over two years while both sides
obtained financial valuations of these businesses.
{¶5} The final divorce proceedings took place over two days of hearings on
May 7th and July 27, 2015, with multiple witnesses. Both parties filed proposed
Shared Parenting Plans as well as requesting to be named the residential parent.
Both parties also presented expert witnesses regarding the value of the businesses;
this testimony vastly conflicted.
{¶6} In its judgment entry and divorce decree, the trial court found Heather's
expert testimony was inflated and not consistent with standard accounting practices.
Further, the trial court named the parties co-residential parents of the minor children.
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Both parties filed separate appeals which we consolidated; Heather's was designated
the appeal and Brett's the cross-appeal. We will combine discussion of the parties'
assigned errors as necessary for clarity of analysis.
Shared Parenting
{¶7} Heather's first of two assignments of error asserts:
THE TRIAL COURT ABUSED ITS DISCRETION IN DESIGNATING
BOTH PARTIES AS RESIDENTIAL PARENTS AND REFUSING TO
GRANT APPELLANT'S SHARED PARENTING PLAN.
{¶8} A trial court has broad discretion when deciding child custody matters in
a divorce and its decision will not be reversed absent an abuse of that discretion.
Masters v. Masters, 69 Ohio St.3d 83, 85, 1994-Ohio-483, 630 N.E.2d 665. "An
abuse of discretion means an error in judgment involving a decision that is
unreasonable based upon the record; that the appellate court merely may have
reached a different result is not enough." Downie v. Montgomery, 7th Dist. No. 12 CO
43, 2013-Ohio-5552, ¶ 50. When an award of custody is supported by some
competent, credible evidence, that award will not be reversed by a reviewing court as
being against the weight of the evidence. Bechtol v. Bechtol, 49 Ohio St.3d 21, 23,
550 N.E.2d 178 (1990).
{¶9} The trial court must allocate the parental rights and responsibilities for
the minor children of the marriage during divorce proceedings. R.C. 3109.04(A). If
one of the parties requests shared parenting, then the trial court must determine if a
shared parenting plan is in the child's best interests. R.C. 3109.04(A)(2). If the trial
court finds that a shared parenting plan is not in the child's best interests, then it must
designate one party as the residential parent and divide the other rights and
responsibilities for the care of the child between the parents. R.C. 3109.04(A)(1).
{¶10} Heather contends that shared parenting as ordered by the trial court is
inappropriate because the parties are incapable of communicating. But then she
asserts shared parenting would be appropriate if the trial court adopted the plan she
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proposed, which designates her residential parent, without providing authority to
support this argument.
{¶11} The parties' difficulty in communicating was known when Heather and
Brent submitted their respective shared parenting plans, and noted throughout the
proceedings. Although this argument is meritless, the trial court erred for another
reason.
{¶12} Both parties filed proposed shared parenting plans. As such, R.C.
3109.04(D)(1)(a)(ii) controls, and provides in pertinent part, where both parents
submit proposed shared parenting plans:
If the court approves a plan under this division, either as originally filed
or with submitted changes, or if the court rejects the portion of the
parents' pleadings or denies their motions requesting shared parenting
under this division and proceeds as if the requests in the pleadings or
the motions had not been made, the court shall enter in the record of
the case findings of fact and conclusions of law as to the reasons for
the approval or the rejection or denial. Division (D)(1)(b) of this section
applies in relation to the approval or disapproval of a plan under this
division.
{¶13} The trial court never acknowledged the parties filed competing shared
parenting plans, nor mentioned that it reviewed them. Nor does the record
demonstrate the trial court considered the children's best interest. Instead, the trial
court's judgment entry merely stated that it adopted the schedule put into effect
nearly three years earlier and retained both parents as co-residential parents;
however, the entry does not detail the schedule.
{¶14} As both of the parties proposed shared parenting plans and neither was
adopted, the trial court was required to enter findings of fact and conclusions of law
as to why it rejected both plans. R.C. 3109.04(D)(1)(a)(ii). Accordingly, Heather's first
assignment of error regarding shared parenting is meritorious.
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Business Valuation
{¶15} Both parties assign error regarding the business valuations. Heather's
second of two assignments of error asserts:
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ACCEPTING
THE BUSINESS VALUES PRESENTED BY APPELLANT'S EXPERT.
{¶16} Brent's first of two cross-assignments of error asserts:
THE TRIAL COURT ERRED IN FAILING TO ACCEPT BUSINESS
LOSS AND FAILED TO NET THE BUSINESS LOSS AND BUSINESS
GAIN FOR APPELLEE'S TWO BUSINESSES.
{¶17} A trial court's division of marital assets is reviewed for abuse of
discretion. James v. James, 101 Ohio App.3d 668, 680, 656 N.E.2d 399 (2d.1995).
"An abuse of discretion means an error in judgment involving a decision that is
unreasonable based upon the record; that the appellate court merely may have
reached a different result is not enough." Downie v. Montgomery, 7th Dist. No. 12 CO
43, 2013-Ohio-5552, ¶ 50. As the trier of fact, the trial court is responsible for
resolving factual disputes and weighing the credibility of testimony and evidence.
Covert v. Covert, 4th Dist. No. 03CA778, 2004-Ohio-3534, at ¶ 18. The trial court is
in the best position to view witnesses, "observe their demeanor, gestures, and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony." Id. There were three businesses involved in this appeal.
{¶18} The valuation of the dance workshop was not challenged on appeal; the
parties' appealed the valuation of the hardware and furniture stores. Both parties
conceded and the trial court found that these businesses were Brent's separate
property. Heather made a claim to one half of the appreciation in the value of the
businesses during the marriage, which the trial court held was from July 1998
through December 2012.
{¶19} Turning first to the Woodsfield Ace Hardware store, Heather's expert
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Louis Costanza valued the appreciation at $274,000, whereas Brent's expert Gary
Mole valued the appreciation to be $63,000. The trial court agreed with Brent's
expert, adopted $63,000, and awarded Heather one-half of this amount. Brent does
not challenge this valuation, but Heather argues the trial court abused its discretion in
not adopting the valuation proffered by her expert.
{¶20} It cannot be said that the trial court abused its discretion in adopting
Mole's valuation of the hardware store. The trial court found, based upon the
testimony and evidence presented, that Heather's expert valuation was
unreasonable, unsupported and inflated without any reasonable basis in accounting
practice; specifically, the 12% rate of return used in Costanza's computation.
Although Heather disagrees, this alone does not serve as a basis to find an abuse of
discretion by the trial court. Thus, this argument is meritless.
{¶21} Regarding the second business at issue on appeal, Dick's Furniture
Gallery, Costanza valued the appreciation at $35,000, whereas Mole testified the
furniture store actually depreciated by $45,000. The trial court agreed with neither
figure and assessed a zero value for the furniture store, but provided no reasoning
for this conclusion. Both Heather and Brent contend the trial court abused its
discretion in not adopting the valuation of their experts respectively.
{¶22} "A trial court must generally assign and consider the values of marital
assets in order to equitably divide those assets." Raymond v. Raymond, 10th Dist.
No. 11AP-363, 2011-Ohio-6173, *7 (internal citations omitted). "A court cannot satisfy
its duty without probative evidence of the value of marital assets." Id.{¶23} Here, we can glean from the record that the trial court did consider the
opinions of both experts. After discounting both, it assigned a zero value.
Accordingly, Heather's assignment of error regarding the hardware store is meritless,
and both parties' assignments of error regarding the furniture store are meritless.
Debt Allocation
{¶24} Brent's final cross-assignment of error asserts:
THE TRIAL COURT ERRED IN FAILING TO ALLOCATE THE
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WESBANCO HOME EQUITY LOAN OF $11,000 AS A DEBT OF THE
APPELLANT SINCE THE SAME WAS INCURRED IN THE
PURCHASE OF THE APPELLANT'S DANCE STUDIO BUSINESS
WHICH WAS ALLOCATED TO THE APPELLANT.
{¶25} "As with the division of marital property, the equitable division of marital
debt is a matter subject to the exercise of the trial court's discretion." Polacheck v.
Polacheck, 9th Dist. No. 26551, 26552, 2013-Ohio-5788, ¶ 7. "An abuse of discretion
means an error in judgment involving a decision that is unreasonable based upon the
record; that the appellate court merely may have reached a different result is not
enough." Downie v. Montgomery, 7th Dist. No. 12 CO 43, 2013-Ohio-5552, ¶ 50.
{¶26} The dance studio business was purchased for $30,000 and was already
in operation at the time of sale. The parties used $10,000 cash and $20,000 from a
home equity loan to fund the purchase and renovate the studio. At the time of trial
approximately $11,000 was owed on the loan and the business was valued at
approximately $21,000, which was undisputed. Brent argues that the trial court erred
in not requiring Heather to be responsible for the debt or in the alternative erred in
not giving him a credit. Heather argues that the $20,000 was not solely used for the
dance studio purchase.
{¶27} Both parties testified that the $20,000 was only partly used for the
dance studio business. Heather testified that the home equity loan was also used to
make improvements to an outbuilding at the marital property, the purchase of the
tractor used at Brent's hardware business, and a new heating and cooling system at
the marital home. Brent did not contest this testimony or submit any documentation
tracing the disbursements of the home equity loan.
{¶28} Brent was awarded the marital home and several furnishings contained
within it, which is marital property. He was also awarded his separate property, the
hardware and furniture stores. According to Heather's undisputed testimony, some
of the home equity funds were used to benefit these assets. Accordingly, the trial
court did not abuse its discretion in allocating the home equity debt to Brent.
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{¶29} Brent further argues the trial court did not specifically order him to pay
the home equity loan. A review of the judgment entry reveals that the trial court did
not specifically state that Brent was responsible for the mortgage or home equity
loan; instead stating the amount owed for each debt. The court implied he was
responsible by awarding him the marital home, but did not directly order that Brent
was responsible for this specific debt. Accordingly, Brent's second cross-assignment
of error is meritorious in part.
{¶30} In sum, the judgment of the trial court is affirmed in part, reversed in
part, and remanded for the trial court to consider the parties' competing shared
parenting plans pursuant to R.C. 3109.04(D)(1)(a)(ii) and to specifically allocate the
mortgage and home equity loan debt.
Donofrio, J., concurs.
Waite, J., concurs.