Gantous v. Basing , 2024 Ohio 1112 ( 2024 )

[Cite as Gantous v. Basing, 2024-Ohio-1112.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
JOSEPH D. GANTOUS, CASE NO. 2023-G-0029
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
SHEILA M. BASING,
Trial Court No. 2018 DC 000017
Defendant-Appellant.
OPINION
Decided: March 25, 2024
Judgment: Affirmed
Annette C. Trivelli, 9801 Bright Water Drive, Englewood, FL 34223 (For Plaintiff-
Appellee).
Frank R. Brancatelli, 7318 Gallant Way, Painesville, OH 44077 (For Defendant-
Appellant).
MARY JANE TRAPP, J.
{¶1} The instant appeal arises from a hearing following our remand in Gantous
v. Basing, 11th Dist. Geauga No. 2021-G-0005, 2022-Ohio-3001 (“Gantous I”), for the
trial court to determine the character division of the parties’ real estate located at 22400
Seabrooke Avenue, Euclid, Ohio 44123 (the “Seabrooke residence”), which we
determined was marital property; the marital interest in the parties’ respective OPERS
(Ohio Public Employee Retirement System) accounts; and the equitable division of the
marital property between the parties.
{¶2} Appellant, Sheila M. Basing (“Ms. Basing”), raises three assignments of
error, contending the trial court erred by (1) failing to find she paid an $11,812.59 lien on
the Seabrooke residence, which should have been deducted from the marital equity of
the home before dividing it equally between the parties; (2) awarding appellee, Joseph D.
Gantous (“Mr. Gantous”) 50% of her OPERS retirement account because her income was
$18,000 per year less than his income before she retired; and (3) failing to consider R.C.
3105.171(F) in making a distributive award, specifically as to equitably dividing the marital
portion of the parties’ OPERS accounts by an in-kind 50%-50% division pursuant to a
division of property order (“DOPO”), R.C. 3105.80 et. seq.
{¶3} After a careful review of the record and the pertinent law, we find Ms.
Basing’s assignments of error are without merit.
{¶4} Firstly, Ms. Basing incurred during the marriage and made payments on a
secured debt on the Seabrooke residence for her own use; thus, it was her sole obligation
and should not be relevant to a consideration of the division of the marital equity in the
Seabrooke home.
{¶5} Secondly and thirdly, our review of the 2020 magistrate’s decision following
the divorce trial and the magistrate’s decision following our remand in Gantous I reveals
the trial court set forth and applied the factors of R.C. 3105.171(F) in fashioning an
equitable award of the parties’ marital interest in their respective OPERS accounts. The
trial court was concerned with the disparity in the parties’ accounts, their largest assets,
and we cannot find the trial court abused its discretion in equalizing them by an in-kind
50%-50% distribution. While Ms. Basing’s account is already in pay status and her
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income was less than Mr. Gantous, she was similarly awarded 50% of the marital interest
in Mr. Gantous’ account.
{¶6} The judgment of the Geauga County Court of Common Pleas is affirmed.
Substantive and Procedural History
{¶7} The parties were married in 2000 and have two children together. Ms.
Basing has a child from a previous marriage. The parties used the Seabrooke residence
as their marital residence until 2007.
{¶8} In 2018, Mr. Gantous filed for a divorce.
{¶9} After the initial divorce trial in July 2020, the magistrate issued a decision,
which the trial court adopted after overruling the parties’ objections, except for the
termination date of the marriage. The court found the value of the marital assets assigned
to each party was $65,150 to Mr. Gantous and $126,696 to Ms. Basing. To equalize the
award, the court ordered Ms. Basing to transfer her Huntington National Bank investment
account (or the amount of $18,108) to Mr. Gantous, and to pay Mr. Gantous a distributive
award in the amount of $30,773. The court further ordered that each party retain his or
her own OPERS account free from any claim by the other, that neither party is entitled to
spousal support, and that Ms. Basing pay $10,000 in attorney fees to Mr. Gantous. The
trial court found the termination date of the marriage was March 10, 2020. Both parties
appealed.
{¶10} In Gantous I, we found the court’s finding that the Seabrooke residence was
Ms. Basing’s separate property was against the manifest weight of the evidence and that
the entire amount of equity in the home was marital property. Id. at ¶ 39. More
specifically, we determined that although she owned the home prior to the parties’
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marriage, Ms. Basing failed to meet her burden of tracing her separate property, “i.e., the
loan proceeds used for improvements, the marital funds used to pay off the loan, and the
parties’ own labor—destroyed its identity as separate property.” Id. at ¶ 38.
{¶11} We also determined we were unable to fully review the trial court’s decision
regarding the equitable division of marital assets because the trial court failed to affix a
value to the parties’ retirement accounts. Id. at ¶ 57. The magistrate had instructed the
parties prior to the divorce trial to either have both accounts valued by a pension evaluator
or agree not to value the accounts and divide them. Id. at ¶ 54. At that time, counsel
agreed to obtain valuations; however, nine months later and on the last day of trial, it was
made apparent that neither party had their account valued. Id.
{¶12} Ultimately, the trial court gave each party the right to their own account, free
from any claim by the other, reasoning it could not ascertain the present actuarial values
and provide a current division of cash; it would be inequitable to subject both parties’
OPERS accounts to division of property orders; and dividing the accounts would keep the
parties financially entangled for years. Id. at ¶ 55. We determined that despite the lack
of evidence, the court still had a duty to value and equitably divide the marital assets and
could not omit a valuation altogether. Id. at ¶ 56.
{¶13} In March 2023, pursuant to our remand, the magistrate conducted an
evidentiary hearing. Mr. Gantous presented the testimony of Ms. Basing, as if on cross-
examination; himself; and his counsel (for attorney fees only). Ms. Basing testified on
direct examination during Mr. Gantous’ case in chief. In addition, as relevant, both parties
submitted valuation reports on the OPERS accounts as evidentiary exhibits.
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The Magistrate’s Decision
{¶14} The magistrate issued findings of fact and conclusions of law, determining,
in relevant part, the following:
{¶15} (1) At the divorce hearing, the parties stipulated that the value of the
Seabrooke residence was $70,000. Following our instructions on remand, the magistrate
found the marital interest is $70,000 plus any appreciation. Further, the Seabrooke
residence should be sold and the net proceeds equally divided.
{¶16} (2) The magistrate found the martial interest in Mr. Gantous’ OPERS
account is $212,147.83. Ms. Basing chose early retirement and retired in 2017 at the age
of 55. The present value of the marital interest in her account is $366,161.73. Finding
the marital portion of each of the parties’ respective OPERS accounts should be equitably
divided pursuant to R.C. 3105.171, the magistrate presented two alternatives.
{¶17} The first was an equalizing cash payment of $77,007.15 from Ms. Basing to
Mr. Gantous. However, the magistrate noted there was “insufficient present income,
monies or other assets in the name or possession of” Ms. Basing to effectuate such a
payment.
{¶18} The second alternative, which the trial court adopted, was to equitably
divide in kind (50%-50% between the parties) the marital interest in the parties’ OPERS
accounts pursuant to a DOPO using a marriage termination date of March 10, 2020.
Because Ms. Basing is already receiving benefits, she is required to pay Mr. Gantous
$54,007.34, representing 50% of the monthly benefits she has received from the
termination date of the marriage, March 10, 2020, to the date of the court’s final judgment
entry adopting the magistrate’s decision, June 30, 2023. This payment will be made in
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monthly installments of $1,000 by an automatic bank transfer. Ms. Basing will also be
required to pay Mr. Gantous 50% of any monthly benefits she receives after June 30,
2023. Both parties are entitled to procure and maintain a term life insurance policy due
to the risk of losing his or her entitlement to the other’s benefits should he or she
predecease the other.
{¶19} (3) Not including the Seabrooke residence and the marital interest in the
parties’ respective OPERS accounts, the total value of the marital assets determined at
trial was $101,601. To equalize the division of assets and debts, Ms. Basing is required
to pay Mr. Gantous two payments from her 50% share of the sale of the Seabrooke
residence: (1) $18,000, representing the Huntington National Bank investment account
that was ordered in the original judgment entry for divorce, and (2) $18,225.50, an
additional equalizing cash payment.
Ms. Basing’s Objections and The Trial Court’s Judgment
The Seabrooke Residence
{¶20} Ms. Basing objected to an equal division of the proceeds from the
Seabrooke residence, contending she should be first reimbursed $11,812.50 from the net
proceeds of the sale because she paid off an equity loan to Dollar Bank against the
property in this sum. At the time of the divorce trial, Ms. Basing was still paying off the
loan. She submitted a monthly loan statement from Dollar Bank as an evidentiary exhibit,
labeled “Exhibit T.” Ms. Basing contended that this exhibit was not considered during the
divorce hearing or on appeal by this court in Gantous I.
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{¶21} A review of the July 2020 magistrate’s decision following the divorce hearing
reveals the magistrate noted there was a “modest balance of this line of credit” that
remained outstanding.
{¶22} A review of the docket in Gantous I reveals that while the appeal was
pending, this court filed a judgment entry noting that some of the exhibits offered at trial
were not included in the record on appeal. We gave the parties 15 days to supplement
the record with anything material that had been omitted. While neither party responded,
the trial court supplemented the record and provided this court with the omitted exhibits,
including Exhibit T.
{¶23} The trial court overruled Ms. Basing’s objection, noting she failed to present
any evidence at the evidentiary hearing of her alleged payment of the loan, “merely
confirming that no present lien existed on the property.” The trial court reviewed that in
her previous objections to the 2020 magistrate’s decision, Ms. Basing had argued the
equity lines of credit against the Seabrooke residence were “taken out solely by
Defendant [Basing] and entirely paid back by Defendant [Basing].”
{¶24} The trial court found that “it is irrelevant that [Ms. Basing] borrowed against
the property herself and/or paid off the Dollar Bank loan as she has alleged, whether she
did so during the marriage or after the parties’ last date of trial on March 10, 2020,” and
that “the net proceeds of the sale of the Seabrooke residence be equally divided between
the parties, irrespective of any line of credit obtained or paid by [Ms.] Basing.”
Martial Interest in the Parties’ Retirement Accounts
{¶25} Ms. Basing also objected to the magistrate’s division of the parties’ OPERS
accounts. She argued the magistrate failed to consider the parties’ assets and liabilities,
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the liquidity of the property, and the economic desirability of retaining an intact asset or
interest in an asset. She further argued the magistrate’s division of the parties’ OPERS
accounts is punitive because Mr. Gantous is still working.
{¶26} The trial court overruled Ms. Basing’s objection, finding her arguments
ignored the gross disparity in the value of the parties’ respective accounts and the bases
for an in-kind division. Further, the division Ms. Basing was proposing, i.e., that each
party retain their respective OPERS account, is the division she appealed in Gantous I.
The trial court concluded that “an in-kind division of the marital portion of both retirement
accounts between the parties is appropriate and equitable.”
Equitable Division of Property
{¶27} Lastly, Ms. Basing argued that an equitable division of the parties’ marital
property pursuant to the factors set forth in R.C. 3105.171(F) should be: (1) each party
separately retain their OPERS account; (2) Ms. Basing should transfer the $18,108
Huntington Bank Investment Account to Mr. Gantous per the original divorce decree; (3)
Mr. Gantous’ marital interest in the Seabrooke residence should be $29,093.35; and (4)
Ms. Basing should pay Mr. Gantous $34,731 as an equalizing payment.
{¶28} The trial court overruled Ms. Basing’s objection, finding her proposal was
“obviously inappropriate under any analysis or application of R.C. 3105.171, which
requires an equitable division of all marital assets.”
{¶29} After overruling Ms. Basing’s objections, the trial court adopted the
magistrate’s findings of fact and conclusions of law.
{¶30} Ms. Basing raises three assignments of error on appeal:
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{¶31} “[1.] The trial court erred to the prejudice of the defendant-appellant, Sheila
M. Basing when it failed to find that there existed a lien on the Seabrook[e] (Exhibit T) in
the original trial in this matter in the sum of $11,812.59 and acknowledged [she] paid off
three (3) years lat[]er with a stipulated value of $70,000 at the time of the divorce.
{¶32} “[2.] The trial court erred to the prejudice of the defendant-appellant, Sheila
M. Basing when it awarded defendant-appellee 50% of her OPERS effective March 11,
2020 even though her income was $18,000 per year less than plaintiff-appellee.
{¶33} “[3.] The trial court erred to the prejudice of the defendant-appellant, Sheila
M. Basing when it failed to take into consideration the provisions of Ohio Revised Code
§3105.171 in making a distributive award.”
Standard of Review
{¶34} In her three assignments of error, Ms. Basing argues the trial court’s award
of marital property, i.e., the Seabrooke residence, the parties’ respective OPERS
accounts, and the distributive award in favor of Mr. Gantous to equalize the distribution
of the parties’ marital property, is inequitable.
{¶35} Trial courts have broad discretion in deciding appropriate property awards
in divorce cases. Speece v. Speece, 2021-Ohio-170, 167 N.E.3d 1, ¶ 18 (11th Dist.).
“However, a trial court’s discretion is not unbridled. The award need not be equal, but it
must be equitable. A reviewing court will not substitute its judgment for that of the trial
court unless the trial court abused its discretion.” Id., quoting Bisker v. Bisker, 69 Ohio
St.3d 608, 609, 635 N.E.2d 308 (1994). An abuse of discretion is the trial court’s “‘failure
to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist.
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Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th
Ed.2004).
{¶36} “‘“When applying this standard of review, we must view the property
division in its entirety, consider the totality of the circumstances, and determine whether
the trial court abused its discretion when dividing the spouses’ marital assets and debts.”’”
Speece at ¶ 19, quoting Calkins v. Calkins, 2016-Ohio-1297, 62 N.E.3d 686, ¶ 22 (11th
Dist.), quoting Baker v. Baker, 4th Dist. Washington No. 07CA24, 2007-Ohio-7172, ¶ 28.
“‘In determining whether the trial court has abused its discretion, a reviewing court is not
to weigh the evidence, but, rather, must determine from the record whether there is some
competent, credible evidence to sustain the findings of the trial court.’” Id., quoting Habo
v. Khattab, 11th Dist. Portage No. 2012-P-0117, 2013-Ohio-5809, ¶ 55.
{¶37} “[A] potentially equal division is to be the starting point in determining an
equitable distribution of property.” Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293(1981), paragraph one of the syllabus. “‘The equitable division of marital property
necessarily implies the equitable division of marital debt.’” Speece at ¶ 20, quoting Longo
v. Longo, 11th Dist. Geauga No. 2004-G-2556, 2005-Ohio-2069, ¶ 109, citing R.C.
3105.171(F)(2). As this court has observed, “‘equality of distribution, while a goal in many
situations, must yield to concerns for equity.’” Id., quoting Longo at ¶ 111.
{¶38} “If an equal division of marital property would be inequitable, the court
shall not divide the marital property equally but instead shall divide it between the spouses
in the manner the court determines equitable. In making a division of marital property,
the court shall consider all relevant factors, including those set forth in division (F) of this
section.” R.C. 3105.171(C)(1). The division (F) factors are as follows:
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{¶39} “(1) The duration of the marriage;
{¶40} “(2) The assets and liabilities of the spouses;
{¶41} “(3) The desirability of awarding the family home, or the right to reside in
the family home for reasonable periods of time, to the spouse with custody of the children
of the marriage;
{¶42} “(4) The liquidity of the property to be distributed;
{¶43} “(5) The economic desirability of retaining intact an asset or an interest in
an asset;
{¶44} “(6) The tax consequences of the property division upon the respective
awards to be made to each spouse;
{¶45} “(7) The costs of sale, if it is necessary that an asset be sold to effectuate
an equitable distribution of property;
{¶46} “(8) Any division or disbursement of property made in a separation
agreement that was voluntarily entered into by the spouses;
{¶47} “(9) Any retirement benefits of the spouses, excluding the social security
benefits of a spouse except as may be relevant for purposes of dividing a public pension;
{¶48} “(10) Any other factor that the court expressly finds to be relevant and
equitable.”
Seabrooke Residence
{¶49} In her first assignment of error, Ms. Basing contends the trial court failed to
account for an $11,812.59 lien that existed on the Seabrooke residence during the original
divorce trial, which she paid, and that neither the trial court during the divorce trial nor this
court on appeal in Gantous I considered Exhibit T. She further contends the lien should
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have been deducted before dividing the marital equity in the home ($70,000 - $11,812.40
= $58,187.50 divided by 2 = $ 29,093.35).
{¶50} A review of the July 2020 magistrate’s decision reveals the magistrate
determined a “modest balance” remained on an existing credit line. Similarly, our review
of the docket in Gantous I reveals Exhibit T was expressly included in the record and our
consideration on appeal. Thus, it appears Exhibit T was considered by both courts. At
the evidentiary hearing after remand, Ms. Basing submitted no evidence or testimony that
the lien was a marital debt and should be deducted from the marital interest in the home
before equally dividing the proceeds of the sale of the Seabrooke residence. Her
statements in her objections to the 2020 magistrate’s decision were quite to the contrary,
informing the court she took out the line of credit by herself and repaid it herself.
{¶51} We agree with the trial court that a loan billing statement on an equity line
Ms. Basing took out for personal use and repaid herself is not relevant in the
determination of the marital equity of the home. See, e.g., Schaefer v. Schaefer, 5th Dist.
Stark No. 2007CA00283, 2008-Ohio-3960, ¶ 39 (husband’s additional line of credit on
home equity loan to meet his financial obligations was his separate obligation); Sharp v.
Sharp, 9th Dist. Wayne Nos. 21AP0007 and 21AP0019, 2022-Ohio-1201, ¶ 37 (portion
of home equity line that was used to purchase wife’s truck was equitably set off by
awarding husband certain tools).
{¶52} Ms. Basing’s first assignment of error is without merit.
Equitable Division of the Parties’ OPERS Retirement Accounts
{¶53} Since Ms. Basing’s last two assignments of error concern the equitable
division of the parties’ OPERS accounts, we will address them together. In Ms. Basing’s
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second assignment of error, she contends the trial court erred by awarding Mr. Gantous
50% of her OPERS account from the termination date of the marriage even though her
income was $18,000 per year less than Mr. Gantous’ income. In her third assignment of
error, Ms. Basing contends the trial court failed to consider the factors in R.C. 3105.171(F)
when dividing the parties’ respective OPERS accounts.
{¶54} When presented with a pension or retirement fund, the trial court is
charged with the goal of preserving the asset so that each party can procure the most
benefit. Hoyt v. Hoyt, 53 Ohio St.3d 177, 181, 559 N.E.2d 1292 (1990). A trial court has
broad discretion in formulating an equitable distribution of marital property. Berish v.
Berish, 69 Ohio St.2d 318, 319, 432 N.E.2d 183 (1982).
{¶55} While the trial court has broad discretion, it must make written findings of
fact to support its determination that the marital property has been equitably divided.
Gupta v. Sharan, 10th Dist. Franklin No. 22AP-81, 2022-Ohio-4479, ¶ 77; R.C.
3105.171(G). R.C. 3105.171(G) requires that “[i]n any order for the division * * * of
property * * * made pursuant to this section, the court shall make written findings of fact
that support the determination that the marital property has been equitably divided * * *.”
{¶56} Pursuant to R.C. 3105.171(C), when dividing marital property, the trial
court must consider all relevant factors, including those outlined in R.C. 3105.171(F).
Gupta at ¶ 78. While the trial court need not itemize every factor set forth in R.C.
3105.171(F), the court’s decision must clearly indicate that the factors were considered
before the property division was made. Id.{¶57} A review of the magistrate’s decision following the divorce hearing reveals
the magistrate specifically set forth and applied the factors of R.C. 3105.171(F); however,
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because the parties failed to follow the court’s order to submit valuations of their
respective OPERS accounts, the magistrate found it was inequitable to divide the
accounts. The magistrate noted that “[it] is possible that if the parties had engaged a
retirement benefits consulting firm * * *[,] the consultants could have offered other
suggestions for an equitable division of these assets, and the Court could have
considered those alternatives in deciding how to divide all the parties’ assets.”
{¶58} We remanded in Gantous I because the trial court must affix some value
to an asset despite the parties’ failure to put forth any evidence. Id. at ¶ 54-57.
{¶59} On remand, the parties submitted valuation reports of the OPERS accounts.
A review of the magistrate’s findings of fact and conclusions of law reveals the magistrate
reviewed that Ms. Basing’s OPERS account is in pay status and Mr. Gantous remains
employed and contributes to his OPERS account. The magistrate disagreed with Mr.
Gantous’ argument that the valuation of the parties’ respective OPERS accounts should
be the date of Ms. Basing’s retirement, October 30, 2017. The marriage termination date
of March 11, 2020, is appropriate because while Ms. Basing may have elected to retire,
Mr. Gantous chose to remain married to Ms. Basing, to continue to be employed, and to
contribute to his OPERS account until he filed his complaint for divorce on January 8,
2018.
{¶60} The magistrate further found it was required pursuant to R.C. 3105.171 to
equitably divide both retirement accounts (Mr. Gantous, $212,147.83, and Ms. Basing,
$366,161.73). The court reviewed that the parties have insufficient present income,
monies, or other assets for an equalizing payment, and that an in-kind division pursuant
to a DOPO and R.C. 3105.80 et. seq. was more efficient, equitable, and appropriate.
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Thus, contrary to Ms. Basing’s contention, the trial court considered the factors of R.C.
3105.171(F) both before and after our remand in Gantous I.
{¶61} While Ms. Basing argues the trial court should have allocated each party
the entirety of their separate accounts, she appealed the court’s initial award of such in
Gantous I, raising the trial court’s failure to consider the valuation of the parties’ OPERS
accounts as her sixth assignment of error. Id. at ¶ 48.
{¶62} After the evidentiary hearing on remand, the trial court stated its concern
about the disparity in the the parties’ accounts. We cannot find the trial court abused its
discretion in equalizing the parties’ accounts, their largest assets, by an in-kind 50%-50%
distribution. While Ms. Basing’s OPERS account is already in pay status and her income
was less than Mr. Gantous, she was similarly awarded 50% of Mr. Gantous’ marital
interest in his OPERS account.
{¶63} We recognize that courts “should attempt to disentangle the parties’
economic partnership so as to create a conclusion and finality to their marriage” and that
“trial courts, when circumstances permit, should strive to resolve the issues between the
parties so as to disassociate the parties from one another or at least minimize their
economic partnership.” Hoyt at 179, 182. But “the trial court must [also] obtain a result
which will preserve the asset so that each party can procure the most benefit.” Id. at 181.
{¶64} Ms. Basing’s second and third assignments of error are without merit.
{¶65} The judgment of the Geauga County Court of Common Pleas is affirmed.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.
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