Victor v. Kaplan , 2020 Ohio 3116 ( 2020 )

[Cite as Victor v. Kaplan, 2020-Ohio-3116.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
VLADIMIR B. VICTOR, :
Plaintiff-Appellant/ :
Cross-Appellee,
: No. 108252
v.
:
MARINA KAPLAN, ET AL.,
:
Defendants-Appellees/
Cross-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN
PART; AND REMANDED
RELEASED AND JOURNALIZED: May 28, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-358403
Appearances:
Cavitch, Familo & Durkin, Co., and Roger L. Kleinman, for
appellant/cross-appellee.
Rosenthal | Thurman | Lane L.L.C., and Scott S. Rosenthal
for appellee/cross-appellant M.K.
Skirbunt & Skirbunt L.L.C., James R. Skirbunt, and
Sharon A. Skirbunt, for cross-appellee Skirbunt &
Skirbunt, L.L.C.
MICHELLE J. SHEEHAN, J.:
Plaintiff-appellant Vladimir B. Victor (“Husband”) appeals from the
judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations
Division, adopting the magistrate’s decision primarily regarding distribution of
marital assets, as modified. Defendant-appellee/cross-appellant Marina Kaplan
(“Wife”) also appeals the judgment. Third-party defendant/cross-appellee Skirbunt
& Skirbunt, L.L.C. (“Skirbunt”) answers Wife’s cross-appeal concerning the trial
court’s granting of Skirbunt’s motion to intervene and the trial court’s award of
attorney fees. For the reasons that follow, we affirm in part, reverse in part, and
remand.
I. Procedural History and Substantive Facts
Husband and Wife married on February 22, 2000. One child, J.V.,
was born as issue of the marriage and is now emancipated. Wife has one adult
daughter, Rachel, from a previous marriage.
During the marriage, Husband worked at various jobs. Initially, he
worked as a computer and financial consultant with Richler Victor & Associates. He
was also employed by Ameriprise as a financial advisor. At some point in time,
however, Husband’s license as a financial advisor was suspended. He then worked
in real estate, primarily purchasing, managing, and rehabilitating rental properties.
Throughout the marriage, Wife worked in the medical sales industry
for several different companies. She worked at Bayless-Pathmark (“Bayless”) as a
contractual employee from 1996 through 1998, and then under a different contract
for the entirety of 1999, before marrying Husband in early 2000. Wife continued
employment with Bayless into the marriage. According to Wife, at the end of 1999,
she learned that her contract would not be renewed, so she began negotiations with
Bayless. (Tr. 539, exhibit No. 69.) Wife continued working at Bayless in 2000, under
different employment terms that expired on December 31, 2000. (Tr. 515, exhibit
No. 9, 1495.) In 2000, Bayless offered Wife a new contract but she declined the
offer. (Tr. 1501.)
On October 12, 2001, Wife procured a structured settlement with
Bayless for $350,000. Bayless agreed to make payments to Wife over five years,
with the first payment payable within seven days of execution of the agreement.
During the marriage, Husband and Wife had acquired numerous
bank or investment accounts including the following: (1) FCI Global Chase Checking
#5390; (2) FCI Global Chase Savings #8060; (3) A1 Huntington Money Market
#9122; (4) A1 Huntington Checking #3639; (5) 1612 Wood Huntington Checking
#8192; (6) 1534 Parkhill Huntington Checking #8189; (7) H Huntington #9122; (8)
4208 Cedar Huntington Checking #8202; (9) 3259 Desota Land Huntington #8163;
(10) 3675 Randolph Huntington #7173; (11) Gevaldig Enterprises KeyBank
Checking #2679; (12) H KeyBank Checking #2679; (13) MA Kaplan Living Trust
Chase Checking #5660; (14) MA Kaplan Living Trust Chase Savings #7146; (15) MA
Kaplan Living Trust NYCB Checking #3715; (16) MA Kaplan Living Trust KeyBank
Checking #0198; (17) MA Kaplan Living Trust T.Rowe Price [#916]; (18) MA Kaplan
Living Trust Fidelity #4424; (19) W Fifth Third Checking #1516; and (20) MA
Kaplan Living Trust Vanguard #9847.
Throughout the marriage, the parties maintained the following
retirement accounts: (1) FCI Global 401(k) Trust (Chase); (2) W Fidelity IRA
#7888; (3) W Fidelity SEP IRA #6625; and (4) W Oppenheimer.
Husband and Wife had also acquired interest in certain real estate.
Husband claims an interest in the following real properties: (1) 1534 Parkhill Road;
(2) 1612 Wood Road; (3) 3259 Desota Avenue; (4) 3316 Desota Avenue; (5) 3675
Randolph Road; (6) 3744 Berkeley Road; and (7) 4208 Cedar Avenue. Wife owned
the following properties: (1) 3494 Shannon Road (the marital residence); (2) 3631
Bendemeer Road; (3) 2664 Brentwood Road; and (4) 2547 Edgewood Road.
Husband and Wife accumulated credit card debt during the
marriage, including the following: (1) Home Depot; (2) FCI Global Chase #8017;
(3) Discover; (4) Amex #84008, #11001, #43007, and #9-71001; (5) Capital One
#5299 and 1118; (6) British Airlines #2242; (7) Nordstrom; and (8) Citicards.
On August 17, 2015, Husband filed a complaint for divorce, alleging
gross neglect of duty and extreme cruelty and requesting that he be designated the
residential parent of the minor child. On September 14, 2015, Wife filed an answer
denying Husband’s allegations and a counterclaim. The court issued restraining
orders against both parties.
The matter was heard before the court magistrate on May 8, 2017,
June 12-14, 2017, June 19-20, 2017, July 24-28, 2017, and September 12, 2017. At
the time of trial, numerous motions filed by both Husband and Wife were pending,
including several motions for attorney fees, motions to show cause, and motions to
compel. On April 5, 2018, the magistrate issued a 42-page decision that also
addressed the pending motions.
The magistrate made initial findings of fact concerning the parties’
credibility and conduct throughout the proceedings:
The court finds both [Husband] and [Wife] lack credibility, generally.
This finding is based on the totality of the parties’ conduct during the
pendency of this action, and more specifically their conduct during
trial both in and out of court. This finding is based on the court’s
consideration and evaluation of the parties’ testimony when
compared to the testimony of the other witnesses, and also in
comparison to each other’s testimony.
The magistrate noted in support that Husband refused to permit
Wife’s real estate appraisal expert witnesses to enter the structures he owns or to
provide Wife with copies of the lease agreements for Husband’s rental properties.
Additionally, Husband “consistently feigned a lack of memory on matters of
substance when it suited his purposes, yet conveniently remembered even
seemingly insignificant details about matters [that] advanced his positions or
arguments.”
Regarding Wife’s behavior, the magistrate noted that Wife sold a
piece of real estate in violation of the mutual restraining orders during trial, then
“conveniently failed to disclose this fact while on the witness stand and under oath,”
despite being questioned about the real estate. The magistrate found that Wife had
knowledge of the restraining orders, yet knowingly sold the property and
intentionally concealed this fact from the court. The magistrate further noted that
Wife “frustrated the court’s efforts to efficiently complete the trial and caused an
undeterminable amount of delay by consistently refusing to answer the simplest and
most straightforward questions during cross-examination.”
The magistrate then made findings concerning the parties’ real and
personal property, including the Bayless settlement proceeds, financial and
retirement accounts, debt, allocation of parental rights, child support, and spousal
support. And the magistrate entered a disposition concerning the approximately 31
pending motions. Both parties filed objections. In particular, Husband objected to
nearly the entirety of the magistrate’s decision, including the magistrate’s
disposition of various pending motions.
On January 28, 2019, the trial court adopted the magistrate’s
decision as modified. The court addressed each of the Husband’s objections as
follows: objection Nos. 1-10, 12-13, and 16, overruled; objection No. 11, sustained in
part; objection No. 14, sustained; and objection No. 15, sustained in part.
The trial court’s modifications to the magistrate’s decision included
the following: Husband’s objection No. 11 addressing the magistrate’s granting of
Wife’s motion and amended motion to compel response to records subpoena issued
to [the attorney] and motion for attorney fees and expenses (motion No. 400500).
The magistrate determined that Husband failed to provide discovery and ordered
Husband to complete 50 hours of community service in lieu of a monetary sanction.
The trial court found the community service order inappropriate and vacated the
sanction. The court instead ordered Husband to pay Wife’s attorney fees in the
amount of $2,000.
In 0bjection No. 14, Husband argued that the magistrate erred in
ordering Husband to pay for the minor child’s annual health care costs. Finding the
magistrate made a clerical error, because Wife “offered and requested to be
responsible for” the minor child’s health care in her closing arguments, the trial
court sustained this objection and amended the magistrate’s decision to reflect
Wife’s responsibility for the child’s health care costs.
In objection No. 15, Husband argued that the magistrate erred in
adopting the guardian ad litem’s (“GAL”) proposed shared parenting plan, which
designated Wife as the residential parent for school purposes. Husband proposed
instead that both parents be designated as residential parent. Because J.V. is now
emancipated, a shared parenting plan is moot, and we therefore decline to address
the court’s judgment pertaining to Husband’s objection No. 15.
Finally, the trial court overruled all six of Wife’s objections.
This appeal now follows.
II. Assignments of Error
Husband assigns the following 12 errors for our review:
I. The trial court’s finding that the proceeds of an employment discrimination
claim is Wife’s separate property was error as a matter of law, an abuse of
discretion, and contrary to the manifest weight of the evidence.
II. The trial court’s finding that the assets in Wife’s living trust and in Wife’s
name are Wife’s separate property is error as a matter of law, an abuse of
discretion, and contrary to the manifest weight of the evidence.
III. The magistrate erred in determining Wife’s separate property interest in
four pieces of real estate owned by Wife and by Wife’s living trust.
IV. The trial court’s finding that Husband had an ownership interest in 5333
Antisdale is error as a matter of law, an abuse of discretion, and contrary to
the manifest weight of the evidence.
V. The trial court’s valuation of marital real estate was error as a matter of
law and abuse of discretion.
VI. The trial court’s allocation of all marital debt to husband was error as a
matter of law and an abuse of discretion.
VII. The trial court’s failure to award husband spousal support is an abuse of
discretion.
VIII. The trial court’s rulings on contempt motions/motions for attorney fees
were contrary to the manifest weight of the evidence.
IX. The trial court’s determination of attorney fees was an abuse of discretion.
X. The trial court’s support order is an abuse of discretion.
XI. The magistrate erred in adopting the GAL’s proposed shared parenting
plan.
XII. The trial court’s failure to order a distributive award sufficient to
effectuate an equitable division of the marital estate was an abuse of
discretion and contrary to the manifest weight of the evidence.
Wife cross-appeals, assigning the following 9 errors for our review:
I. The trial court erred in prohibiting Wife from filing supplemental
objections on the basis that Wife did not file a praecipe, when Wife
gave notice of her intent to file supplemental objections in her
preliminary objections, and when opposing counsel filed a praecipe.
II. The trial court erred by granting Wife’s former counsel’s motion to
intervene.
III. The trial court erred when issuing a sua sponte award of attorney
fees with no such motion pending, after the magistrate’s decision but
before the judgment of entry of divorce.
IV. The trial court erred and abused its discretion by imposing a
$50,000 penalty against Wife for the alleged violation of the court’s
temporary restraining orders.
V. The trial court erred and abused its discretion when it failed to
credit Wife for advancing $77,000 of attorney fees to Wife’s counsel,
and for Wife’s payment of all of the GAL’s fees in the amount of
$20,000 from the final calculation of the division of assets and
liabilities.
VI. The trial court erred and abused its discretion when concluding
that Husband should be awarded $12,250 for personal property.
VII. The trial court erred and abused its discretion when including
$58,418.64 in the division of property in addition to awarding Cross-
Appellee a sum of $50,000, as this was a “double dip” of the proceeds
from the sale of the property.
VIII. The trial court erred and abused its discretion in the division of
personal property as failing to be substantiated by any credible
testimony.
IX. The trial court erred and abused its discretion when it failed to
award Cross-Appellant any child support during the pendency of the
litigation.
III. Standard of Review
We review a trial court’s determination in domestic relations cases
for an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028(1989).
Since it is axiomatic that a trial court must have discretion to do what
is equitable upon the facts and circumstances of each case, * * * it
necessarily follows that a trial court’s decision in domestic relations
matters should not be disturbed on appeal unless the decision
involves more than an error of judgment.
Id., citing Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981).
An abuse of discretion “connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). And where there is some competent, credible evidence in the record to
support the trial court’s decision, there is no abuse of discretion. Trolli v. Trolli, 8th
Dist. Cuyahoga No. 101980, 2015-Ohio-4487, ¶ 29, citing Kapadia v. Kapadia, 8th
Dist. Cuyahoga No. 94456, 2011-Ohio-2255, ¶ 24.
Concerning Husband’s assigned errors regarding the trial court’s
distribution of the marital property, this court reviews a trial court’s property
division “as a whole, in determining whether it has achieved an equitable and fair
division of marital assets.” Tyler v. Tyler, 8th Dist. Cuyahoga No. 93124, 2010-
Ohio-1428, ¶ 24, citing Briganti v. Briganti, 9 Ohio St.3d 220, 222, 459 N.E.2d 896(1984).
R.C. 3105.171(C)(1) mandates an equal division of marital property,
or “if an equal division is inequitable, the court must divide the marital property
equitably.” Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, 791 N.E.2d 434,
¶ 5. In order to determine what is equitable, the trial court must consider the factors
outlined in R.C. 3105.171(F). Id. These factors include the duration of the marriage,
the assets and liabilities of the spouses, tax consequences of the property division,
any retirement benefits of the spouses, and “[a]ny other factor the court expressly
finds to be relevant and equitable.” R.C. 3105.171(F)(1)-(10); Kehoe v. Kehoe, 2012-
Ohio-3357, 974 N.E.2d 1229, ¶ 14 (8th Dist.) (stating that the trial court must take
into account the parties’ marital debt when dividing marital property). The trial
court “‘must indicate the basis for its division of the marital property in sufficient
detail to enable a reviewing court to determine whether the award is fair, equitable,
and in accordance with the law.’” Johnson v. Mills, 8th Dist. Cuyahoga No. 102241,
2015-Ohio-4273, ¶ 19, quoting Franklin v. Franklin, 10th Dist. Franklin No. 11AP-
713, 2012-Ohio-1814, ¶ 4.
IV. Husband’s Appeal
A. Bayless Settlement
Husband’s first assignment of error pertains to the Bayless
settlement proceeds. The magistrate determined that the settlement proceeds were
Wife’s separate property because Wife’s claim arose prior to the marriage:
[T]he evidence establishes, and the court finds, [Wife’s] claim against
Bayless arose prior [to] the marriage. [Husband] disputed the
chronology of events at trial, however, the court agrees [Wife’s]
timeline is supported by the evidence. [Wife’s] premarital claim,
which ultimately led to her acquisition of the settlement proceeds, was
therefore separate, not marital, on temporal grounds.
Husband objected to the magistrate’s decision on the basis that
Wife’s claim against Bayless arose after the marriage and the settlement proceeds
represented income that would have been earned during the marriage. He also
testified at trial and argued in his objections that his marital labor in assisting Wife’s
negotiations with Bayless produced a significantly better settlement and therefore
the proceeds were marital.
In his decision, the magistrate rejected, “without hesitation,”
Husband’s “preposterous and narcissistic claim” that his marital labor produced a
successful settlement with Bayless, finding that Wife’s attorneys negotiated the
settlement with Bayless. The magistrate stated that he based this decision upon the
testimony of the parties and a consideration of the evidence. The magistrate stated
that although Husband “inserted himself into the negotiations process and was
included in some communications between those involved, * * * there is nothing in
the record to show [Husband] was actually responsible for settling the dispute.” The
magistrate therefore concluded that Wife’s premarital claim against Bayless was not
converted from separate property to marital property based on Husband’s actions.
The trial court overruled Husband’s objections and adopted the
magistrate’s decision on this issue in its entirety. In so doing, the court stated as
follows:
The magistrate properly found [Wife] presented ample evidence that
this premarital claim, which ultimately led to [Wife’s] acquisition of
settlement proceeds, occurred well before her marriage to [Husband].
The parties were married on February 22, 2000. It appears the
underlying action for [Wife’s] claim occurred in 1999, prior to the
marriage. Additionally, [Husband] was not involved in negotiations
or responsible for settling the dispute.
On appeal, Husband contends that the trial court’s finding that the
proceeds from Wife’s claim against her former employer is separate property is error
as a matter of law. In support, he argues once again that Wife’s claim against Bayless
arose after the marriage, the settlement proceeds represented income that would
have been earned during the marriage, and Husband’s marital labor in assisting
Wife’s negotiations with Bayless produced a significantly better settlement and
therefore converted the funds to marital property.
When distributing property in a divorce proceeding, the trial court
must first determine what constitutes marital property and what constitutes
separate property. Comella v. Comella, 8th Dist. Cuyahoga No. 90969, 2008-Ohio-
6673, ¶ 38, citing R.C. 3105.171(B). The determination of whether property is
marital or separate is a mixed question of law and fact that will not be reversed
unless it is against the manifest weight of the evidence. Kobal v. Kobal,
2018-Ohio-1755, 111 N.E.3d 804, ¶ 27 (8th Dist.). Once the characterization of the
property is made, the reviewing court will not disturb the trial court’s distribution of
the property absent an abuse of discretion. Id.; Williams v. Williams, 8th Dist.
Cuyahoga No. 95346, 2011-Ohio-939, ¶ 8.
Property acquired during a marriage is generally presumed to be
marital property, unless it can be shown to be separate. Johnson, 8th Dist.
Cuyahoga No. 102241, 2015-Ohio-4273, at ¶ 18. The party seeking to have certain
property classified as “separate property” has the burden of proof, by a
preponderance of the evidence, in tracing the separate property. Strauss v. Strauss,
8th Dist. Cuyahoga No. 95377, 2011-Ohio-3831 at ¶ 49, citing Peck v. Peck, 96 Ohio
App.3d 731, 734, 645 N.E.2d 1300 (12th Dist.1994).
Marital property includes:
(i) All real and personal property that currently is owned by either or
both of the spouses, including, but not limited to, the retirement
benefits of the spouses, and that was acquired by either or both of the
spouses during the marriage;
(ii) All interest that either or both of the spouses currently has in any
real or personal property, including, but not limited to, the retirement
benefits of the spouses, and that was acquired by either or both of the
spouses during the marriage;
(iii) Except as otherwise provided in this section, all income and
appreciation on separate property, due to the labor, monetary, or in-
kind contribution of either or both of the spouses that occurred during
the marriage * * *.
R.C. 3105.171(A)(3)(a)(i)-(iii).
Marital property does not, however, include separate property. R.C.
3105.171(A)(3)(b). “Separate property” is any real and personal property or any
interest in real or personal property that is any of the following:
(i) an inheritance by one spouse by bequest, devise, or descent, during
the marriage;
(ii) any real or personal property or interest in real or personal
property that was acquired by a spouse prior to the date of the
marriage;
(iii) passive income and appreciation acquired from separate property
by one spouse during the marriage;
(iv) any real or personal property or interest in real or personal
property acquired by one spouse after a decree of legal separation
* * *;
(v) any real or personal property or interest in real or personal
property that is excluded by a valid antenuptial agreement;
(vi) compensation to a spouse for the spouse’s personal injury, except
for loss of marital earnings and compensation for expenses paid from
marital assets;
(vii) Any gift of any real or personal property or of an interest in real
or personal property that is made after the date of the marriage and
that is proven by clear and convincing evidence to have been given to
only one spouse.
R.C. 3105.171(A)(6)(a)(i)-(vii).
The commingling of separate property with other property does not
destroy the identity of the separate property “except when the separate property is
not traceable.” R.C. 3105.171(A)(6)(b); Woyt v. Woyt, 8th Dist. Cuyahoga
Nos. 107312, 107321, 107322, 2019-Ohio-3758, ¶ 22.
Here, Wife contends that she is entitled to the Bayless proceeds as
separate property because her “employment dispute” with Bayless (Wife’s Brief,
p. 4), which stemmed from the nonrenewal of her contract, predated the marriage.
In support, she testified at trial that her claim was based upon her contract with
Bayless for 1996-1999. Although Wife stated at her deposition that she retained an
attorney in 2000 (tr. 397), she testified at trial that she retained an attorney in 1999
to renegotiate this contract, stating that she “started talking to Bayless in ‘99.”
(Tr. 489.)
Regardless, the record shows that contract negotiations in fact
occurred in 2000, and at some point, the subject of the negotiations changed:
Attorney: You would agree with me that on October 3, 2000, you had
a meeting with your lawyers * * * ?
Wife: That’s correct.
Attorney: And this was regarding contract negotiations?
Wife: It was ongoing, yes.
Attorney: Right. And it was negotiations regarding a new
employment contract for you, true?
Wife: Right. We were trying to negotiate.
Attorney: And you would agree with me that at some point in time
after you began the contract negotiations, the negotiations changed
from the terms of a new employment contract to a severance contract,
correct?
Wife: At some point, yes.
(Tr. 490.)
And during this period of contract negotiations, Wife continued to
work at Bayless in some fashion in 2000 and into 2001:
Attorney: And you say that your employment agreement ended in
1999?
Wife: Contractual.
Attorney: You’re contractual. And were the terms of your
employment after the end of the contract better or worse?
Wife: They were not the same terms.
Attorney: Okay. They were just different?
Wife: There was no contract.
Attorney: But you had a commission schedule, correct?
Wife: Right. Because I was bringing in business.
***
Attorney: Okay. I’m looking at your income tax return that was
attached as part of [an exhibit to your expert’s report] for 2000. And
I see that you made $197,253 in the year 2000; does that sound right?
That’s employment income.
Wife: Yeah.
Attorney: So although you’re saying your employment contract ended
in ‘99, you were still making the same amount of money in 2000, true?
Wife: I was bringing more business.
Attorney: Okay. And when did you ever work for Bayless as an
independent contractor?
Wife: I think in 2001. * * * If I remember correctly.
Attorney: So your employment really had three stages to it. There
was a period of time where you had an employment contract that
renewed itself every year?
Wife: Right.
Attorney: There was a period of time where you were still an employee
but not with an employment contract?
Wife: Transition.
Attorney: Right. And then there was a third period in which you were
an independent contractor * * * or consultant.
Wife: Right.
***
Attorney: [Y]ou worked for Bayless throughout 2001, true?
Wife: Right. As a consultant.
***
Attorney: But while you were with Bayless, you weren’t working for
any other companies? * * *
Wife: No.
(Tr. 532-535, 539; exhibit No. 69.)
Then on October 12, 2001, Wife executed a settlement agreement
with Bayless in the amount of $350,000. Bayless agreed to make payments to Wife
over five years, with the first payment payable within seven days of execution of the
agreement. The settlement represented the income Wife would have earned over
the next 18 months going forward:
Attorney: Now did you tell me that at the time you settled the case,
your case with Bayless, that the $350,000 reflected the amount you
would have earned over the next 18 months as an employee of
Bayless?
Wife: That’s correct, yeah
Attorney: You believe that during the next year alone you would have
made $300,000, plus a contribution to the profit sharing plan, true?
Wife: Yes.
(Tr. 408.)
Attorney: Your claim against Bayless arose from the Bayless’s
nonrenewal of your contract from 1999, true?
Wife: Correct.
Attorney: Okay. And * * * your claim was that you should have been
earning more money in 2000, 2001, and forward, true?
Wife: Correct.
(Tr. 1496.)
Wages earned during a marriage constitute marital property.
Williams, 8th Dist. Cuyahoga No. 95346, 2011-Ohio-939, at ¶ 12, citing
R.C. 3105.171(A)(3)(a)(iii); Blevins v. Blevins, 2d Dist. Greene No. 2018-CA-23,
2019-Ohio-297, ¶ 23. Likewise, “compensation for the loss of those wages during
the marriage must also be marital property.” Id.; see Collins v. Collins, 5th Dist.
Stark Nos. 2010CA00283 and 2010CA00299, 2011-Ohio-4973 (finding the trial
court’s determination that the proceeds from the settlement of a sexual harassment
lawsuit were separate property was against the manifest weight of the evidence
where Husband and Wife testified the settlement was awarded as lost wages); see
also Budd v. Budd, 9th Dist. Summit No. 25469, 2011-Ohio-565, ¶ 18, quoting
McKenzie v. McKenzie, 2d Dist. Greene No. 2006-CA-34, 2006-Ohio-6841, at ¶ 15,
quoting McClure v. McClure, 98 Ohio App.3d 27, 41, 647 N.E.2d 832 (2d Dist. 1994)
(stating that “‘“severance pay received during the marriage is marital property to the
same extent that wages paid during the marriage are marital property”’”).
While Wife testified that she began contract negotiations with
Bayless in 1999, before the marriage, the evidence shows that the settlement was
executed in October 2001, during the marriage, and payments would begin within
seven days of execution of the agreement. Moreover, Wife admits that the proceeds
from the settlement reflected lost future wages — income she would have earned
during the marriage. Wife also testified that she paid income tax on at least a portion
of the settlement proceeds. (Tr. 535-536.) And there is no evidence that Wife was
owed compensation for her employment with Bayless in 1999. In fact, Wife testified
that she was under contract for the entirety of 1999 and that year proved to be her
highest year of compensation with Bayless. (Tr. 531.) The settlement proceeds are
therefore marital property.
To the extent Wife argues that her “employment dispute” with
Bayless included a discrimination claim against her former employer and, therefore,
the settlement proceeds are her separate property, we find no merit.
Although there is some reference in the trial transcripts to Wife
having a discrimination claim against Bayless,1 Wife presents no testimony or
documentary evidence supporting such a claim or itemizing any amount of the
settlement proceeds that purportedly resulted from Wife’s settlement of a
discrimination claim. Moreover, the settlement agreement does not categorize any
of the settlement proceeds as compensation for a discrimination claim. Wife
therefore fails to satisfy her burden. Beagle v. Beagle, 10th Dist. Franklin
No. 07AP-494, 2008-Ohio-764, ¶ 25 (finding Husband’s claim that settlement
proceeds from a personal injury lawsuit was compensation for his emotional
distress, and not income replacement, lacking merit where Husband presented no
documentary evidence concerning the lawsuit); Barrientos v. Barrientos, 3d Dist.
Hancock No. 5-12-13, 2013-Ohio-424, ¶ 21 (finding Husband failed to sustain his
burden of demonstrating what amount of the personal injury settlement was
1 Under cross-examination, Husband’s attorney questioned Wife about
conversations she had with her employment attorney regarding a possible discrimination
claim. Husband’s attorney asked Wife if her employment attorney told her she had no
actionable claim for employment discrimination or that “just because Dr. Schwartz was a
jerk didn’t make [the claim] actionable.” Wife replied that she did not recall, and she
stated that “anything is possible.”
attributable to “personal injury” as opposed to “loss of marital earnings” and
therefore his claim of separate property failed).
Husband, however, testified regarding an email he sent to Wife’s
employment attorney, Alan Schabes, on Wife’s behalf on July 4, 2001 (exhibit
No. 72) that references discrimination. According to Husband, the email addressed
“what [he] thought would be [their] claim [against Bayless.]” (Tr. 633.) The email
stated that “[e]ver since March 2000 with the relocation to the Brecksville facilities,
my quality of life has been diminished due to the harassment and tactics played at
Bayless.” The email then delineates Wife’s claim against Bayless, which includes a
claim for six months’ severance pay following her contract termination in November
2000; salary owed for January 1 through December 31, 2000; salary owed for
January 1 through April 2, 2001; unpaid commissions “for the term of my
employment”; and profit-sharing contributions. Additionally, the email specifically
asserts that Wife “ha[s] been harassed by Dr. Schwartz from March 2000 to the day
I was asked to leave my office and not come back on April 2, 2001” and this
harassment was allegedly because Wife “was the only woman in an executive
position, which [Dr. Schwartz] wanted to dispose of.”
Therefore, even if we find that Wife in fact had a discrimination
claim against Bayless, the record shows that this claim began in March 2000, which
was during the marriage. Moreover, an employment discrimination claim in and of
itself is not a personal injury claim, and therefore, a settlement awarded as
compensation for employment discrimination is not separate property under R.C.
3105.171(A)(6)(a)(vi). Williams, 8th Dist. Cuyahoga No. 95346, 2011-Ohio-939, at
¶ 11.
In light of the foregoing, we find the trial court’s characterization of
the Bayless settlement proceeds as Wife’s separate property was against the
manifest weight of the evidence.
Husband’s first assignment of error is sustained.
B. Financial Accounts
In Husband’s second assignment of error, he contends that the trial
court erred in finding the assets contained in the following accounts to be separate
property: assets in Wife’s Living Trust (Vanguard #9847, T.Rowe Price #916, and
Fidelity #4424); and two retirement accounts (Fidelity IRA #7888 and Ameriprise
IRA). In support, Husband argues that (1) the court erred in accepting the tracing
methodology used by Wife’s expert, John Davis; (2) the court erred in accepting
Davis as an expert in retirement plans; and (3) the court erred in failing to find the
growth in value of Wife’s accounts with T. Rowe Price and Fidelity resulted from
Husband’s marital labor.
Prior to the marriage, Wife had substantial assets, including several
financial accounts, some of which were commingled with marital assets. Wife
retained John D. Davis, C.P.A., to trace certain assets in these accounts as her
separate property. Husband objected to Davis’s methodology in tracing the separate
property and to his qualifications as an expert in retirement plans. Over Husband’s
objection, the court found Davis to be qualified as an expert and permitted his
testimony.
The court found, based on Davis’s testimony regarding separate
property, that the following financial accounts should be divided proportionally
among the parties: (1) Vanguard #9847 — $42,744 (marital) and $582,102 (Wife’s
separate); (2) Fidelity #4424 — $179,725 (marital) and $308,656.00 (Wife’s
separate); and (3) Fidelity IRA #7888 — $180,902 (marital) and $363,149 (Wife’s
separate). Additionally, the court found that the T.Rowe Price account (valued at
$300,950) shall be awarded to Wife as separate property. The court rejected
Husband’s contention that his marital labor on the accounts caused the growth in
value of Wife’s accounts.
1. Expert Testimony
A trial court should generally admit expert testimony when it is
material and relevant, and in accordance with Evid.R. 702. Terry v. Caputo, 115
Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 16. Evid.R. 702 governs the
admissibility of expert testimony and provides that a witness may testify as an expert
if all of the following apply:
The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception among lay persons; (B) The witness is qualified as an
expert by specialized knowledge, skill, experience, training, or
education regarding the subject matter of the testimony; (C) The
witness’ testimony is based on reliable scientific, technical, or other
specialized information. * * *
Therefore, under this rule, a witness may testify as an expert if he is
qualified as an expert, the testimony relates to matters beyond the understanding of
lay persons, and the testimony is based upon reliable information. Azzano v.
O’Malley-Clements, 126 Ohio App.3d 368, 373, 710 N.E.2d 373 (8th Dist.1998),
citing Nichols v. Hanzel, 110 Ohio App.3d 591, 597, 674 N.E.2d 1237 (4th Dist.1996).
“Qualifications [that] may satisfy the requirements of Evid.R. 702
are multitudinous.” State v. Mack, 73 Ohio St.3d 502, 511, 653 N.E.2d 329 (1995).
There is no requirement that an individual possess a certain educational degree to
qualify as an expert; rather, an individual’s professional experience and training in
a particular field may be sufficient to qualify one as an expert. Id. at 511; State v.
Harris, 2018-Ohio-578, 107 N.E.3d 658, ¶ 40 (8th Dist.). Nor does a witness need
to be the best witness on the subject in order to qualify as an expert. Scott v. Yates,
71 Ohio St.3d 219, 221, 1994-Ohio-462, 643 N.E.2d 105. “The expert must
demonstrate some knowledge on the particular subject superior to that possessed
by an ordinary [factfinder].” Id.A determination of whether a witness is qualified to testify as an
expert is a matter within the discretion of the trial court and will not be reversed
“‘unless there is a clear showing’” that the trial court abused its discretion. State v.
Lumbus, 2016-Ohio-380, 59 N.E.3d 580, ¶ 95 (8th Dist.), quoting State v. Wages,
87 Ohio App.3d 780, 786, 623 N.E.2d 193 (8th Dist.1993), citing State v. Maupin,
42 Ohio St.2d 473, 330 N.E.2d 708 (1975).
In determining whether an expert’s opinion satisfies the
requirements of Evid.R. 702(C), i.e., whether the opinion is reliable and therefore
admissible, we consider whether the principles and methods employed by the expert
to reach that opinion are reliable — “not whether his [or her] conclusions are
correct”— and whether the expert’s testimony “assist[s] the trier of fact in
determining a fact issue or understanding the evidence.” Miller v. Bike Athletic Co.,
80 Ohio St.3d 607, 611, 687 N.E.2d 735 (1998), citing Staff Notes to Evid.R. 702; see
also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-593, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993). Thus, the “‘“ultimate touchstone is helpfulness
to the trier of fact, and with regard to reliability, helpfulness turns on whether the
expert’s technique or principle [is] sufficiently reliable so that it will aid the jury in
reaching accurate results.”’” Miller at 614, quoting DeLuca v. Merrell Dow
Pharmaceuticals, Inc., 911 F.2d 941, 956 (3d Cir.1990), quoting 3 Weinstein,
Evidence, Section 702[03], at 702-35 (1988).
And the credibility to be afforded the expert’s conclusions remains a
matter for the trier of fact. State v. Nemeth, 82 Ohio St.3d 202, 210, 1998-Ohio-376,
694 N.E.2d 1332. Thus, “‘[a]ny relevant conclusions [that] are supported by a
qualified expert witness should be received unless there are other reasons for
exclusion.’” Id., quoting State v. Williams, 4 Ohio St.3d 53, 57, 446 N.E.2d 444(1983).
A trial court’s ruling as to the admission or exclusion of expert
testimony is within its broad discretion and will not be disturbed absent an abuse of
that discretion. Chattree v. Chattree, 2014-Ohio-489, 8 N.E.3d 390, ¶ 38 (8th
Dist.), citing Miller at 616; State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-
Ohio-5172, ¶ 57.
a. Qualifications
Here, Davis testified concerning his qualifications as an expert
witness. He has been a certified public accountant since 1986; he is accredited in
business valuation since 1998; and he is a certified fraud examiner since 2006. He
has previously been qualified as an expert on tracing approximately 25-30 times and
has testified as an expert on tracing in five Ohio counties, he is currently writing a
course for the American Association of Matrimonial Lawyers (“AAML”), and he is a
frequent lecturer on tracing. At the time of trial, Davis was preparing materials for
his lecture for the AAML that included the acceptable methodologies of tracing, such
as direct tracing, proportional share, and lowest intermediate balance. Additionally,
Davis stated that he recently testified as an expert regarding asset tracing in an
ERISA case and asset tracing in a divorce case. In the most recent divorce case, his
testimony included an opinion on proportional share tracing methodology.2
Regarding his qualifications as an expert in retirement plans, Davis
stated that his practice as a certified public accountant qualifies him as an expert on
ERISA, or retirement plans, because a substantial part of his practice involves 401(k)
profit sharing and the firm performs audits. Davis testified that although he does
2 See Forcier v. Forcier, 11th Dist. Geauga No. 2019-G-0192, 2019-Ohio-5052.
not possess certain specialized certifications as a pension consultant or pension
administrator, he possesses the knowledge and 30 years of experience necessary to
testify as an expert in the area of retirement plans.
Based upon the foregoing, we do not find the trial court abused its
discretion in finding Davis’s accounting expertise useful in this case and qualifying
Davis as an expert.
There is no dispute that Davis’s testimony concerning the tracing of
the parties’ financial and retirement accounts relates to matters beyond the
understanding of lay persons. We therefore turn to the methodology Davis used in
tracing Wife’s separate property.
b. Methodology
Husband contends that the proportional share methodology Davis
used in tracing Wife’s separate property is not reliable. In support, he argues that
the proportional share method is contrary to the tracing requirements of R.C.
3105.171 because it eliminates any possibility of commingling, it “avoids the hard
work of tracking the history” of the marital investments, and it violates Evid.R. 703,
because the method “assumed significant withdrawals were proportionately marital
and separate.” He also argues that Davis’s report does not account for a certain
“gap” in records pertaining to particular funds and that Davis did not account for a
large withdrawal from the Vanguard account, thus making Davis’s analysis
unreliable.
As previously stated, the party attempting to classify property as
“separate property” has the burden to establish such traceability. Strauss, 8th Dist.
Cuyahoga No. 95377, 2011-Ohio-3831, at ¶ 49. Once that party has met his or her
burden in tracing the property as separate, the burden shifts to the other spouse to
show that the particular funds were not separate, i.e., were marital, or to provide
some evidence challenging the spouse’s ability to trace the assets. Bauer v. Bauer,
12th Dist. Warren Nos. CA2019-04-033 and CA2019-04-040, 2020-Ohio-425, ¶ 35;
Johnson v. Johnson, 2d Dist. Greene No. 2018-CA-36, 2019-Ohio-1024, ¶ 15. Here,
Husband failed to provide his own expert to challenge Davis’s testimony concerning
the tracing of the various financial accounts or to discredit Davis’s method of tracing.
And a trier of fact “‘may not disregard credible and uncontradicted expert
testimony[.]’” Cromer v. Children’s Hosp. Med. Ctr. of Akron, 2016-Ohio-7461, 64
N.E.3d 1018, ¶ 26 (9th Dist.), quoting State v. White, 118 Ohio St.3d 12, 2008-Ohio-
1623, 885 N.E.2d 905, ¶ 74; Beachwood v. Pearl, 2018-Ohio-1635, 111 N.E.3d 620,
¶ 42 (8th Dist.).
The statute governing the division of marital and separate property,
and the commingling of such funds, provides that “[t]he commingling of separate
property with other property of any type does not destroy the identity of the separate
property as separate property, except when the separate property is not traceable.”
R.C. 3105.171(A)(6)(b). The statute, however, does not specify the methodologies
that must be used to trace the property. Davis’s proportional share method is
therefore not proscribed by the statute. Moreover, Davis asserted that the
proportional share method has been adopted by courts in Ohio. And Husband
provided no evidence that the proportional share method is not a valid method of
tracing for purposes of satisfying the statute.
Davis testified that he in fact used two methods for analyzing the
parties’ assets: (1) direct tracing, and (2) proportional share. He explained that
direct tracing is most useful when the identified funds are identified in a separate
account with no additional activity, or the funds were used entirely to acquire
another item of value, or “when you can trace one item of value directly to another
item of value.” (Exp. Report) (Tr. 983.) Davis further explained that the
proportional share method is necessary “once the funds became commingled.”
(Tr. 1009.) It is a way of “accomplishing allocating income.” (Tr. 1037.)
Davis described proportional share as follows:
Proportional shares deals with assets that have become commingled.
What you have now is you have two categories of assets. In this case,
in Domestic Relations, you have marital and nonmarital. And what
proportional share does, it measures any of the income that is being
earned based on the relationship of each of those categories to the
total. And it would treat dissipation of those assets the same way
based on its proportion of the fund to the total.
***
An example would be if you had a fund that was entirely nonmarital
at $90,000, and then $10,000 was added to that that was marital.
You now have a fund worth $100,000. Then what would happen is if
there’s income earned of a thousand, you would prorate it, 90 percent
of that income would be deemed to be earned by the nonmarital, in
this example, and 10 percent would be for marital. Then if the fund
were dissipated, they would be dissipated[, meaning withdrawn or
spent,] the same way, the 90/10. That ratio stays the same until any
other nonmarital funds would be added to the fund.
According to Davis, the methodology used depends upon the facts
of the case, stating that the data and “flow of funds” dictate which method is most
appropriate. And in this case, Davis explained, he used the direct tracing method
on certain funds (Fund 9) that existed at the date of marriage, had only investment
appreciation, and then was exchanged for a different fund (Fund 21). (Tr. 1008.)
Davis stated that in that case he was able to trace the assets directly from one fund
to another. On the other hand, for example, Davis analyzed Fund 51 (nonmarital
property) under the proportional share method because assets from Fund 123,
which contained marital and nonmarital assets, commingled with Fund 51.
Therefore, according to Davis, once those funds became commingled, it became
necessary to use the proportional share method. Husband provided no expert
testimony to refute Davis’s testimony.
In light of the foregoing, we find the trial court did not err in
accepting the proportional share method utilized by Davis.
Husband claims that, in using the proportional share method, Davis
“missed” a $36,584 withdrawal from the Vanguard account. Specifically regarding
the Vanguard account, however, Davis testified that he accounted for the
$36,584.64 withdrawal (tr. 1047) and he directed counsel to Appendix H of his
report. Davis explained that the $36,584.64 came from Fund 51 and was noted on
Appendix C-1, and of that amount, he calculated $7,151 as marital assets. Davis
further explained that the funds then dissipated and once they dissipated, he no
longer traced them.
Regarding the Fidelity account, Husband claimed that Davis
“missed” marital deposits: (1) $32,166.24, “added after the date of the marriage”;
(2) $10,000, allegedly deposited on May 11, 2000; and (3) $18,000, allegedly
deposited on September 29, 2000. Husband argues that Davis was therefore
precluded from properly tracing the funds in this account. In support of his
argument, Husband refers to Davis’s cross-examination in which counsel presented
copies of two checks purportedly deposited into a Fidelity account:
Q: Now, I want to show you what we’ve marked as Plaintiff’s Exhibit
67. And I direct you to page 4 of that exhibit. And I want you to look
at the two checks at the top of that page. Just take a second and look
at those.
A: Okay.
Q: Okay. Now, I want you to accept for a moment that these are true
and accurate copies of the original. You would agree with me that
those two checks from [Wife’s] KeyBank account indicate that there
was a deposit made on May 19, 2000 of $18,000 into account number
424?
A: That’s what this check says.
Q: And those two deposits are not recounted on your Exhibit L-1,
correct?
A: They are not.
However, Husband has failed to provide expert evidence to
demonstrate that Davis’s methodology is faulty or that the purportedly “missed”
deposits resulted in Davis’s inability to accurately trace Wife’s separate property.
And on re-direct examination, Davis testified that he reviewed the statements for
every account that is in his report, with the exception of “those few Ameriprise
[accounts] indicated in [his] report.” He stated that he has accounted for every
transaction, and with a reasonable degree of certainty, his report addressed every
deposit and withdrawal for all the accounts he analyzed. (Tr. 1082.)
Husband also claims that there is a two-year gap in the Vanguard
records for 2006-2007, and therefore, Husband argues, “the court cannot know
what assets were deposited or withdrawn” and Davis’s analysis is unreliable.
Husband’s support for this claim is a reference to Davis’s testimony:
Q: * * * I’m going to turn to document J-3 and –4. Now, it would
appear that J-3 is simply a summary of all accounts, correct?
A: It’s [a] summary of those three mutual funds, that’s correct.
Q: Of those three mutual funds. And I don’t see anything in your
exhibit, John, that tells me what the activity in those funds were for
that year. Am I missing something?
A: For those? Not on this statement, no. It’s just showing me the
total. But there’s an — if there was activity, it would have been
detailed out inside that report.
Q: My question to you is I can’t tell from looking at J-3 whether your
analysis is correct with respect to 2006 on these three Vanguard
mutual funds.
A: Why not?
Q: How do I know what was — if no money came into one of these
three accounts for 2006, how would I tell on J-3?
A: I didn’t attach all the statements, the pages I see.
Q: So the answer is I wouldn’t know?
A: The documents that were produced though would have it. We
should have all those documents. * * * For some reason they are just
not copied here. I don’t know why.
Q: And the same is true for J-4, correct?
A: That’s correct. I see that those pages are missing too.
Q: So based on your report, there is no way of verifying with a
document what occurred in this Vanguard [account], these three
Vanguard funds during the calendar years 2006 and 2007?
A: Not as attachments, no. My work paper file should contain all
those.
(Tr. 1054-1055.)
This testimony, however, does not demonstrate that a “gap” from
2006-2007 existed or that Davis failed to consider information from 2006 and
2007. While conceding that he failed to attach relevant documents from these years
to the summary documents, Davis testified that the documents were produced and
he in fact considered the information in his analysis. And Husband, once again,
failed to provide any evidence that this alleged “gap” of information caused Davis’s
expert analysis to be unreliable.
Husband further claims that Davis’s analysis ends prior to trial and
is therefore incomplete, because the court lacked information regarding deposits,
withdrawals, and growth since the completion of Davis’s report. The evidence
shows, however, that the trial in this matter was continued four times since the
court’s order for expert reports, and Davis’s report was likely prepared long before
the ultimate trial date. Additionally, Davis reserved the right to update or amend
his report as more information became available. And once again, Husband failed
to establish that this lack of information resulted in an incomplete and consequently
unreliable report.
Finally, Husband claims error concerning the two retirement
accounts — Fidelity and Ameriprise. The evidence shows that Wife transferred the
Bayless settlement funds to the Ameriprise account (tr. 1400), and the Ameriprise
IRA was then rolled into the Fidelity IRA. We concluded in Husband’s first
assignment of error that the Bayless settlement proceeds are marital property and
reversed the court’s finding on this issue. To the extent that Davis attributes the
Bayless funds in the retirement accounts as separate property, we reverse and
remand.
2. Husband’s Marital Labor
Within this assignment of error, Husband also claims that the trial
court erred in failing to find that the growth in value of the T. Rowe Price and Fidelity
accounts can be attributed to Husband’s marital labor.
The general rule in Ohio is that income earned by labor performed
during the marriage is marital property whether received during or after the
marriage. Schweinfurth v. Meza, 8th Dist. Cuyahoga No. 80506, 2002-Ohio-6316,
¶ 19; R.C. 3105.171(A)(3)(a)(iii) (“Marital property includes * * * all income and
appreciation on separate property, due to the labor * * * of either or both of the
spouses that occurred during the marriage.”). And where the wife established the
appreciation of funds as separate property, the husband has the burden to
demonstrate that his marital labor caused the appreciation. See Bauer, 12th Dist.
Warren Nos. CA2019-04-033 and CA2019-04-040, 2020-Ohio-425, at ¶ 35.
Here, Husband claims that he was a licensed financial advisor
throughout the first half of his marriage, he used his skills as an investment advisor
to guide Wife in her investment choices, and these skills caused the appreciation in
the value of the T. Rowe Price and Fidelity accounts. He provided his own testimony
that he advised Wife on how to manage her accounts and the appreciation in those
accounts resulted from his involvement. He testified that Wife did not list any
financial advisor on her accounts and that he conducted periodic reviews of all of
her accounts, making notes on account statements, beginning “from the time [he
and Wife] spoke” until 2011, when Wife “stopped seeking [Husband’s] advice.”
(Tr. 727-728.) In support of his “tremendous” efforts, Husband provided a
spreadsheet from one month in 2007. Wife, however, testified that Husband was
not her advisor and he had little involvement in her accounts. She further testified
that when Husband was involved, it was through his professional capacity as an
employee of American Express, and he was compensated by his employer
accordingly.
Additionally, Wife presented the expert testimony of John Davis,
who testified concerning Wife’s separate property interests in these accounts. The
court found Davis to be credible and found that Wife “met her burden to prove
certain accounts were her separate property.” The court further found that Husband
“offered little evidence to rebut Davis’s testimony.” Finally, the court found “the
magistrate was in the best position to weigh the evidence.”
In light of the foregoing, we find the court did not abuse its discretion
in concluding that Husband failed to rebut Davis’s expert testimony concerning
Wife’s traceable separate property and Husband’s marital labor did not contribute
to the growth of Wife’s financial accounts.
Husband’s second assignment of error is therefore overruled in all
respects with the exception of Davis’s analysis of Wife’s retirement accounts. To the
extent that Davis’s conclusion that Wife’s IRAs are Wife’s separate property is based
upon his determination that the Bayless settlement proceeds contained within
Wife’s retirement accounts are Wife’s separate property, we sustain Husband’s
assignment of error.
C. The Bendemeer, Brentwood, and Edgewood Properties
In his third assignment of error, Husband claims the trial court erred
in determining Wife’s separate property interest in four real estate properties owned
by Wife and by Wife’s living trust. On appeal, however, he provides an argument for
only three of the properties: (1) 3691 Bendemeer Road (“the Bendemeer property”);
2664 Brentwood (“the Brentwood property”); and 2547 Edgewood (“the Edgewood
property”). At the time of the divorce, the properties were titled in Wife’s name or
in the name of her revocable trust. Husband argues that Wife’s expert real estate
appraiser, Charles Flagg, improperly valued the properties. Husband also argues
that the trial court erred in determining the extent of Wife’s separate property
interests.
Wife purchased the Bendemeer property in June 1995 for $79,000.
(Tr. 435, 561.) She made a down payment of $16,000 and obtained a 15-year loan
for the remaining $63,200. (Tr. 562.) Wife owed approximately $44,867 on the
house at the time of the parties’ marriage in 2000. (Tr. 645-646.) Wife testified that
she made monthly mortgage payments on the Bendemeer property until she paid
off the balance of the loan in one lump sum, during the marriage, with the proceeds
she received from the Bayless settlement. (Tr. 435, 562.) Husband likewise testified
that the mortgage for the Bendemeer property was fully paid with the Bayless
proceeds in 2001. (Tr. 645-46.) Wife sold this property for $135,000 during the
pendency of this divorce proceeding, in violation of the court’s order.
The parties purchased the Brentwood property in 2002 with
proceeds from the Bayless settlement. (Tr. 436, 528, 648.) Flagg testified that the
Brentwood property’s fair market value is $210,000.
Finally, the parties purchased the Edgewood property in 2004,
during the marriage. Wife testified that the parties purchased this property with the
Bayless settlement proceeds. (Tr. 437, 651.) Husband testified that the Bayless
settlement proceeds were used to make a deposit for both the Brentwood and
Edgewood properties. (Tr. 653.) The Brentwood property was destroyed by fire in
2012. The Cuyahoga County Court of Common Pleas Court, in Cuyahoga C.P. No.
CV-13-810080, determined that Husband had no insurable interest in this property,
and Wife received an insurance settlement in the amount of $149,121.08. Flagg
appraised the site of the Brentwood property (vacant land) for $90,000. (Tr. 1299.)
The trial court found that the Bendemeer property is Wife’s separate
property because she purchased the home before the marriage and she paid off the
mortgage with the proceeds from the Bayless settlement, which the trial court
determined was Wife’s separate property. Regarding the Brentwood property, the
trial court found that Wife used $53,800 of the Bayless settlement proceeds as a
down payment toward the purchase of this property, and because the Bayless
proceeds are Wife’s separate property, Wife is entitled to the $53,800 down
payment. The court further found that the appraised value of the Brentwood
property was $156,200. Therefore, reducing the appraised value by Wife’s down
payment, the court concluded that the parties have a joint interest in the remaining
$102,400 equity in the Brentwood property. Finally, the trial court awarded the
Edgewood property to Wife.
In light of our determination that the Bayless settlement proceeds
are marital assets, we find the trial court erred in awarding to Wife the entirety of
the Bendemeer property, the $53,800 down payment toward the purchase of the
Brentwood property, and the entire $90,000 appraised value of the Edgewood
property.
Husband’s third assignment of error is sustained to the extent the
trial court based its award of Wife’s separate property interests in the
aforementioned properties on its erroneous conclusion that the Bayless settlement
proceeds are Wife’s separate property.
D. The Antisdale Property
In his fourth assignment of error, Husband contends, without any
legal authority in support, that the trial court erred in finding he had an ownership
interest in 5333 Antisdale Avenue (“the Antisdale property”). Husband claims that
he loaned $23,085.11 to his sister, Liliana Weiser, to help her purchase the property
and his sister owns the property. Therefore, according to Husband, his marital
interest in the property “at best” is $23,085.11.
Husband testified that when he loaned his sister the money, he asked
her to sign a partnership agreement providing him an interest in the house, but she
refused. In support, he asserts that only an unsigned copy of the agreement was
produced at trial. Husband also asserted that the property is titled in Weiser’s name
and she has paid all of the property taxes and utilities at the house.
The evidence shows, however, that Husband petitioned the
Cuyahoga County Probate Court, in Cuyahoga P.C. No. 2017-GRD-227666, for legal
guardianship over his sister. Although Husband testified that his sister is in good
health and of sound mind, Weiser did not testify at trial as to her purported
ownership interest in the property. Furthermore, Wife testified that Husband used
marital funds to purchase the Antisdale property.
In awarding Husband the Antisdale property, which was valued at
$82,500, the magistrate questioned Husband’s credibility and “the true nature of
[Husband’s] ownership interest,” stating:
[Husband] claims he merely provided funds (approximately $23,000)
to his sister, Liliana Weiser, to assist her in the purchase of this
property, but that it belongs to her. [Wife], however testified that
[Husband] used $70,000 of marital funds to buy the Antisdale
property, and that it is actually marital.
Suspiciously, [Husband] testified that his sister is in fine health
physically and mentally, yet he petitioned the Cuyahoga County
Probate Court * * * for legal guardianship over Weiser shortly after the
trial was finished. Subsequently, [Husband] has been granted legal
guardianship over his sister and all of her assets, which directly
contradicts his trial testimony regarding her health.
The trial court adopted the magistrate’s decision regarding the
Antisdale property, stating that the magistrate did not find Husband’s testimony
credible and based on the evidence before him, the magistrate made an equitable
division of property as it relates to the Antisdale property. The court found that the
magistrate was in the best position to weigh the evidence before him and the
credibility of the witnesses and therefore found Husband’s objection without merit.
Without additional evidence to support Husband’s claim that his
sister owns the Antisdale property, the trial court was free to disbelieve Husband’s
self-serving testimony. Strauss, 8th Dist. Cuyahoga No. 95377, 2011-Ohio-3831, at
¶ 56; Deacon v. Deacon, 8th Dist. Cuyahoga No. 91609, 2009-Ohio-2491, at ¶ 43,
citing Tokar v. Tokar, 8th Dist. Cuyahoga No. 89522, 2008-Ohio-6467 (trial court
properly rejected Husband’s testimony regarding negative value of marital property
because he failed to submit independent evidence); Smith v. Smith, 12th Dist. Butler
No. CA2001-11-259, 2002-Ohio-5449 (trial court did not abuse its discretion in
rejecting Husband’s claim that he used money withdrawn from savings plan on
marital household expenses when Husband failed to substantiate his self-serving
testimony).
In light of the lack of documentary or testimonial evidence to support
Husband’s self-serving testimony and the magistrate’s finding that Husband lacked
credibility, we cannot conclude the trial court erred in finding Husband had an
ownership interest in 5333 Antisdale Avenue.
Husband’s fourth assignment of error is overruled.
E. Rental Properties
In Husband’s fifth assignment of error, he claims that the trial court
erred in its valuation of seven rental properties in which he has an interest, including
six properties in which Husband claims only a “fractional” interest (3259 Desota
Avenue, 1534 Parkhill Road, 4208-4212 Cedar Road, 3744 Berkeley Road, 1612
Wood Road, 3675 Randolph Road) and one property that is titled in Husband’s
name (3316 Desota Avenue).
Regarding the property titled only in Husband’s name (3316 Desota
Avenue), Husband argues that he had a third-party investor, I.G., and this investor
demanded the return of her investment. Husband claims, therefore, that he owes
I.G. $44,000. Regarding the other six properties in which Husband claims a
fractional interest, Husband disagrees with Wife’s expert appraisal of the properties.
Husband essentially argues, without providing his own expert opinion, that Wife’s
expert should not have valued the property on the basis of a single owner and that
the trial court erred in accepting this valuation. Husband, however, fails to cite to
any legal authority in support of his argument that the trial court erred.
Under App.R. 16(A)(7), an appellant must include in its brief, under
the headings and in the order indicated, “[a]n argument containing the contentions
of the appellant with respect to each assignment of error presented for review and
the reasons in support of the contentions, with citations to the authorities, statutes,
and parts of the record on which appellant relies.” Id.; State v. Caver, 8th Dist.
Cuyahoga Nos. 90945 and 90946, 2008-Ohio-6155, ¶ 22.
An appellate court may disregard an assignment of error pursuant to
App.R. 12(A)(2) if an appellant fails to cite to any legal authority in support of an
argument as required by App.R. 16(A)(7). Strauss, 8th Dist. Cuyahoga No. 95377,
2011-Ohio-3831, at ¶ 72, citing State v. Martin, 12th Dist. Warren No. CA99-01-003,
1999-Ohio-App. LEXIS 3266 (July 19, 1999); Siemientkowski v. State Farm Ins.,
8th Dist. Cuyahoga No. 85323, 2005-Ohio-4295; Meerhoff v. Huntington Mtge.
Co., 103 Ohio App.3d 164, 658 N.E.2d 1109 (3d Dist.1995). We may also disregard
an assignment of error where an appellant fails to cite to the record. Najjar v.
Najjar, 8th Dist. Cuyahoga No. 91789, 2009-Ohio-3880, ¶ 9. “‘If an argument exists
that can support [an] assigned error, it is not this court’s duty to root it out.’”
Strauss, quoting Cardone v. Cardone, 9th Dist. Summit Nos. 18349 and 18673, 1998
Ohio App. LEXIS 2028 (May 6, 1998).
Accordingly, we decline to address Husband’s fifth assignment of
error.
F. Marital Debt
In Husband’s sixth assignment of error, he contends the trial court
erred in its allocation of the marital debt. In support, he argues that all of the debt
he incurred during the marriage resulted from improvements to real estate and for
other marital purposes. Husband asserts that this debt should therefore be
presumed marital because Wife has not satisfied her burden that the debt is
nonmarital. Husband also claims that the court erroneously dismissed evidence
that Wife engaged in “gross misconduct” that resulted in Husband’s inability to
complete property renovations and repairs, pay for the properties’ expenses such as
utilities and taxes, and “successfully conduct” business.
When a court divides marital property, it must take into account the
parties’ marital debt as well. Chattree, 2014-Ohio-489, 8 N.E.3d 390, at ¶ 8, citing
Kehoe, 2012-Ohio-3357, 974 N.E.2d 1229, ¶ 14. Marital debt includes any debt
incurred during the marriage for the joint benefit of the parties or for a valid marital
purpose. Stratton v. Stratton, 8th Dist. Cuyahoga No. 107798, 2019-Ohio-3279, ¶
41, citing Rossi v. Rossi, 8th Dist. Cuyahoga Nos. 100133 and 100144, 2014-Ohio-
1832, ¶ 62. Therefore, debts incurred during the marriage are presumed to be
marital unless proven otherwise. Turner v. Davis-Turner, 8th Dist. Cuyahoga No.
106002, 2018-Ohio-2194, ¶ 12.
Here, Husband claimed consumer credit card debt related to the
rehabilitation of several rental/investment properties in the amount of $52,272.48.
These properties include 5333 Antisdale Avenue, 3316 and 3259 Desota Avenue,
1534 Parkhill Road, 4208-4212 Cedar Road, 3744 Berkeley Road, 1612 Wood Road,
and 3675 Randolph Road. Husband also claimed indebtedness to two apparent
investors in some of his real estate properties — Goldschmidt ($148,000) and
Genken ($44,000). According to Husband, the two investors have asked Husband
to refund their investments.
Regarding the indebtedness to Husband’s investors, the magistrate
found that Husband is the sole owner of the relevant investment properties, “since
the only testimony regarding his fractional ownership of that real estate was his
own” and Husband lacks “credibility and believability,” which the magistrate found
“problematic.” The magistrate further noted:
[Husband] provided inconsistent and conflicting testimony regarding
the leases, tenants, and rents he collects for the [rental] properties, as
well as their respective conditions. [Husband] claimed multiple
vacant properties will require more repairs before he can rent them
out. In contrast, however, he also testified extensively and in specific
detail about the rehabilitation work he has performed on them.
[Husband] also claims his interests in the above-mentioned
properties are frequently “fractional,” based on his relationships with
several investors, including * * * Goldschmidt and * * * Genken.
[Husband] testified about the existence of several entities and/or
retirement accounts which possess ownership interests in these
properties, including for example, Gavaldig, A-1 Development,
Tomorning, FCI Global, and perhaps others.
To describe the intertwined nature of these purported investors and
business entities and retirement accounts with [Husband’s] financial
affairs as confusing would be an understatement. Despite
[Husband’s] claim he is merely a part owner of these properties, his
tax returns indicate he claims 100 percent of the income from the
rental properties and deducts 100 percent of the expenses. He also
testified he will be reimbursed the $52,272.48 in credit card [debt] he
exclusively accrued for the renovation of the properties from the
rental income.
The magistrate therefore concluded that Husband is solely
responsible for disposing of the claims of Goldschmidt and Genken.
Regarding the consumer credit card debt related to the rehabilitated
properties, the magistrate found that Husband’s testimony regarding the condition
of the properties, “together with his refusal to allow the appraisers inside for
evaluations and his admitted lack of motivation to find paying tenants, leads the
Court to infer [Husband] has intentionally refused to lease these rental properties
as a means of artificially decreasing his income while the case is pending.” The
magistrate therefore concluded that Husband is solely responsible for the balance
on any personal credit cards in his name, including the credit card consumer debt
of $52,272.48, “which [Husband] testified is exclusively attributable to the
rehabilitation and/or maintenance of the [properties awarded to Husband].”
Finally, the magistrate found that the parties would be solely
responsible for any other consumer debt, including credit cards and lines of credit,
held in their own respective names. Specifically, the magistrate determined that
Husband is solely liable for his KeyBank cash reserve line of credit (#2679,
$4,899.83) and KeyBank line of credit (#5818, $9,710.37), and Wife is solely liable
for the following credit cards: British Airways (#2242, $95.00), Nordstrom (#184,
$48.60), Citicards (#7940, $1,972.71), and American Express ($8,360.15).
We find the magistrate’s allocation of the parties’ debt is supported
by the record. None of Husband’s purported investors testified concerning their
investments, nor was any evidence provided other than Husband’s own self-serving
testimony. Moreover, the magistrate found Husband lacked credibility, specifically
noting Husband’s “inconsistent and conflicting testimony.” And we defer to the trier
of fact to determine the credibility of the witnesses, including resolving any
inconsistencies. Allan v. Allan, 8th Dist. Cuyahoga No. 107142, 2019-Ohio-2111,
¶ 80, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 24.
Accordingly, under the facts of this case, and in light of the
magistrate’s finding that Husband lacked credibility, we cannot say the court’s
distribution of the parties’ debt was inequitable.
Husband’s sixth assignment of error is overruled.
G. Spousal Support
In his seventh assignment of error, Husband contends that the trial
court’s failure to award Husband spousal support is an abuse of discretion. In
support, he argues that the statutory factors supported such an award in his favor.
A trial court has broad discretion in awarding spousal support.
Williams v. Williams, 8th Dist. Cuyahoga No. 103975, 2016-Ohio-7487, ¶ 9; Kunkle
v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990) (stating that a trial court has
broad discretion in deciding “what is equitable upon the facts and circumstances of
each case”). However, in making a determination concerning “whether spousal
support is appropriate and reasonable, and in determining the nature, amount, and
terms of payment,” as well as the “duration of spousal support,” the court must
consider the statutory factors. R.C. 3105.18(C)(1); Woyt, 8th Dist. Cuyahoga Nos.
107312, 107321, and 107322, 2019-Ohio-3758, at ¶ 39.
These spousal support factors include: the parties’ income, the
relative earning abilities, the ages and physical and mental conditions of the parties,
retirement benefits, duration of the marriage, the custodial status of a party
concerning a minor child of the marriage, standard of living, the parties’ education,
the parties’ assets and liabilities, time and expense necessary for a spouse’s job
training, tax consequences, a party’s lost income production resulting from that
party’s marital responsibilities, and a party’s contribution to the other party’s
education or acquisition of a professional degree. R.C. 3105.18(C)(1)(a)-(m).
Additionally, the court may consider “any other factor it expressly finds ‘relevant
and equitable.’” Id., quoting R.C. 3105.18(C)(1)(n).
A trial court does not abuse its discretion in awarding spousal
support where the court’s order is supported by competent, credible evidence. Woyt
at ¶ 40, citing Deacon, 8th Dist. Cuyahoga No. 91609, 2009-Ohio-2491, at ¶ 14.
Although the trial court need not comment on each statutory factor, the record
should demonstrate that the court considered the factors when making its award.
Saks v. Riga, 8th Dist. Cuyahoga No. 101091, 2014-Ohio-4930, ¶ 65. A reviewing
court will affirm an award of spousal support “so long as the record reflects that the
trial court considered the requisite statutory factors, and the judgment contains
sufficient detail for us to determine that the award is fair, equitable, and in
accordance with the law.” Woyt at ¶ 40, citing Chattree, 2014-Ohio-489, 8 N.E.3d
390, at ¶ 71.
Husband argues that he should be awarded spousal support because
he was 66 years old at the time of the trial, he was too young to collect social security,
and he was unemployed. He claims that he stopped working as a financial advisor,
allowing his license to lapse, in order to manage the rental properties and care for
their then-minor child. Husband also argues that Wife destroyed his reputation, she
is younger and more educated than he, and Wife has a longer work life.
Here, in his decision concerning spousal support, the magistrate
noted the “inherent difficulties in imputing income” to the parties in this divorce.
Indeed, the magistrate found: both Husband and Wife are voluntarily unemployed;
Husband appears to be “waiting until the case is complete to [secure tenants for his
rental] properties as a means to artificially suppress his actual present earning
capacity”; and because Husband “has refused access to his properties and has
provided no credible evidence to show his actual income since at least 2014,”
imputed income of $100,000, representing approximately 55 % of the total income
Husband would earn for the rented properties at the Husband’s suggested amounts,
is reasonable under the circumstances. The magistrate then stated that he
considered R.C. 3105.18(B) and the factors set forth in R.C. 3105.18(C)(1) and (2)
and concluded that spousal support “is neither appropriate nor reasonable” under
the circumstances.
In adopting the magistrate’s decision, the trial court found the
magistrate was in the best position to weigh the evidence and the magistrate in fact
applied the relevant statutory factors to his determination concerning spousal
support. The court further found that Husband’s claim that Wife caused Husband
lost business opportunities was unsupported, and despite Husband’s “evasiveness
and lack of credibility creating a challenge for the magistrate when determining
[Husband’s] income,” the magistrate reviewed all the evidence and properly
imputed income to Husband.
Regarding Husband’s income, the trial court further stated:
[Husband] testified he was a former financial advisor and “self-
employed in the real estate business.” He also claimed to be a
consultant and property manager. The evidence overwhelmingly
supported a finding that [Husband] was voluntarily unemployed.
After considering the relevant factors * * *, the magistrate determined
an annual income of $100,000 should be imputed to [Husband]. This
figure represents approximately 55% of the total income [Husband]
would earn from his rental properties if each property was being
rented for the amounts that [Husband] has suggested for each unit
respectively. The court finds the magistrate was in the best position
to weigh the evidence before him.
Moreover, the record demonstrates that at the time of trial, Husband
was less than one month from meeting the full retirement age of 66 years, and
Husband needed two employment credits to meet the minimum income
requirements of social security in order to receive social security benefits. Yet
Husband failed to obtain those credits, choosing instead to wait:
Q: If you really wanted to find a way to get those two credits, you could
have found a way to get those two quarters of credits for social
security, right?
A: Yeah. * * * I don’t intend to take social security until I’m 70 because
I would be receiving a much higher amount. * * * It’s a financial
decision. It’s in my best interest to wait until I’m 70.
In light of the foregoing, we cannot find the trial court abused its
discretion in failing to award spousal support to Husband. The judgment contains
sufficient detail demonstrating that the court’s decision not to award spousal
support to Husband is fair, equitable, and in accordance with the law.
Husband’s seventh assignment of error is overruled.
H. Contempt Motions
In his eighth assignment of error, Husband claims the trial court
erred in failing to find Wife in contempt following Husband’s motions filed on July 1,
2016, July 29, 2016, and July 28, 2017. Within this assignment of error, Husband
essentially summarizes each motion, arguing that the evidence shows Wife should
have been found in contempt for numerous reasons. Husband fails, however, to cite
any legal authority in support of his argument that the trial court erred. We
therefore decline to address Husband’s eighth assignment of error. See Strauss, 8th
Dist. Cuyahoga No. 95377, 2011-Ohio-3831, at ¶ 72, citing Martin, 12th Dist. Warren
No. CA99-01-003, 1999 Ohio App. LEXIS 3266; Siemientkowski, 8th Dist.
Cuyahoga No. 85323, 2005-Ohio-4295; Meerhoff v. Huntington Mtge. Co., 103
Ohio App.3d 164, 658 N.E.2d 1109 (3d Dist.1995).
I. Attorney Fees
In his ninth assignment of error, Husband generally, and with
virtually no legal authority in support of his argument, contends the trial court erred
in failing to award him attorney fees. Citing only to “the factors in [R.C.] 3105.73,”
Husband claims that he should have been awarded attorney fees because (1) his
lawyer expended more time on complex issues “that served Wife’s interests only,”
including the tracing of Wife’s separate financial accounts, Wife’s interest in the
Bendemeer, Edgewood, and Brentwood properties, and Wife’s claim that the
Bayless proceeds are her separate property; and (2) Wife engaged in “egregious
misconduct,” including Wife’s “campaign of slander,” her violations of court orders,
and her transfer of marital funds to Wife’s daughter.
We note initially that “there are ‘no automatic attorney fees’ in
domestic relations cases.” Rossi, 8th Dist. Cuyahoga Nos. 100133 and 100144, 2014-
Ohio-1832, at ¶ 100, quoting Packard v. Mayer-Packard, 8th Dist. Cuyahoga No.
85189, 2005-Ohio-4392, ¶ 8. And when determining whether to award attorney
fees in divorce cases, “the court must start with a presumption that attorney fees are
the responsibility of the party who retains the attorney.” Walpole v. Walpole, 8th
Dist. Cuyahoga No. 99231, 2013-Ohio-3529, ¶ 33.
A court may award reasonable attorney fees if it determines that the
award is equitable. Allan, 8th Dist. Cuyahoga No. 107142, 2019-Ohio-2111, at ¶ 100.
In determining whether attorney fees are equitable, the court may consider the
factors set forth in R.C. 3105.73(A). Id. This statute, which governs attorney fees in
divorce proceedings, provides that 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.
While the statute enumerates factors that the trial court may
consider, the statute also permits the trial court to consider any other factors it
deems appropriate. Iacampo v. Oliver-Iacampo, 11th Dist. Geauga No.
2011-G-3026, 2012-Ohio-1790, ¶ 149. The court is not required to make any specific
findings regarding attorney fees. Welty v. Welty, 11th Dist. Ashtabula Nos. 2007-A-
0013 and 2007-A-0015, 2007-Ohio-5217, ¶ 41. And an award of attorney fees is
within the sound discretion of the trial court and its award will not be overruled
absent an attitude that is unreasonable, arbitrary, or unconscionable. Cyr v. Cyr,
8th Dist. Cuyahoga No. 84255, 2005-Ohio-504, ¶ 70, citing Rand v. Rand, 18 Ohio
St.3d 356, 359, 481 N.E.2d 609 (1985).
Regarding attorney fees, the magistrate found it equitable for the
parties to be responsible for their respective attorney fees, and the court adopted the
magistrate’s decision with respect to the magistrate’s finding. The record
demonstrates that both parties have assets and income to pay their own attorney
fees, both parties engaged in obstructive behavior or other misconduct, and
Husband elected not to retain an expert to rebut Wife’s tracing expert or to trace his
own purported separate property, which arguably frustrated the proceedings.
Additionally, the record shows that the magistrate repeatedly addressed Husband’s
lack of credibility throughout his decision.
Moreover, the court addressed Wife’s purported misconduct when it
granted Husband’s motion to show cause, finding Wife in contempt:
[T]he court finds [Wife] did withdraw funds from multiple accounts
in violation of the mutual restraining orders issued in this case.
However, the court is unable to determine the exact amount
attributable to these violations. More egregious is [Wife’s] conduct
with respect to [Wife’s actions in selling the Bendemeer property] in
violation of the mutual restraining orders, and that she absolutely
knew she was not permitted to sell that property, but did so
nonetheless. The fact [Wife] testified about this parcel at trial after
she had sold it, yet made no mention of the sale, is the best evidence
of her consciousness of guilt as it relates to this violation. The court
finds it unreasonable to conclude that significant detail merely slipped
[Wife’s] mind.
As a result of Wife’s contempt, the court awarded Husband the
$50,000 Bendemeer proceeds Wife had already advanced Husband
as a sanction for her conduct, awarding the sum to Husband “as
compensation for the funds [Wife] knowingly withdrew in violation of
the mutual restraining orders and as sanction for her multiple
contempt findings * * *.
Regarding Husband’s request that Wife pay him $5,000 for attorney
fees he incurred to litigate the foregoing show cause motions, the
magistrate noted Wife’s request that Husband pay $10,000 for
attorney fees she incurred in order to access a safe deposit box
Husband failed to disclose and refused to provide access to and stated
as follows:
The court finds it is equitable for the parties to bear all of these costs
themselves. The additional roughly $5,000 [Wife] incurred for fees
in this equation shall be credited against her as further sanction for
her early withdrawal of funds in violation of the mutual restraining
orders as discussed above.
In light of the foregoing, we cannot find the trial court abused its
discretion in not awarding Husband attorney fees.
Husband’s ninth assignment of error is overruled.
J. Child Support
In his tenth assignment of error, Husband claims the trial court’s
child support order is an abuse of discretion.
In support of his argument that the trial court erred, Husband
asserts that the court’s order is based upon “$100,000 of non-existent income” and
provides five “reasons,” including his age and “very little” income and Wife’s
misconduct and her “income-generating” separate property that the magistrate
allegedly did not consider. Husband, however, provides no citation to portions of
the transcript and, once again, fails to cite any legal authority to support his
argument. Under the authority cited above, we therefore decline to address
Husband’s tenth assignment of error.
K. Shared Parenting Plan
In his eleventh assignment of error, Husband claims that the court
erred in adopting the GAL’s proposed shared parenting plan. Husband concedes,
however, in his reply brief that this issue is now moot because the parties’ child is
now emancipated. We therefore find this alleged error moot and decline to consider
it.
L. Division of Marital Estate
In his twelfth and final assignment of error, Husband claims the trial
court abused its discretion when it failed to order a distributive award in order to
effectuate an equitable division of the marital estate. In support of his argument,
Husband cites only to the trial court’s authority under R.C. 3107.171(E) to make such
an award and claims that the evidence “established the massive financial
misconduct in which Wife had engaged.”
R.C. 3105.171(E)(1) permits a trial court to make a distributive award
to “facilitate, effectuate, or supplement a division of marital property.” Under
R.C. 3105.171(E)(4), “if a spouse has engaged in financial misconduct, including, but
not limited to, the dissipation, destruction, concealment, nondisclosure, or
fraudulent disposition of assets, the court may compensate the offended spouse with
a distributive award or with a greater award of marital property.” A spouse commits
“financial misconduct” where he or she “engages in intentional conduct by which he
or she either profits from the misconduct or intentionally defeats the other spouse’s
interest in marital assets. Rodgers v. Rodgers, 8th Dist. Cuyahoga No. 105095,
2017-Ohio-7886, ¶ 30; Best v. Best, 10th Dist. Franklin No. 11AP-239, 2011-Ohio-
6668, ¶ 17 (stating that financial misconduct occurs when one spouse intentionally
interferes with the other spouse’s property rights). The offended spouse bears the
burden of proving the financial misconduct. Id.“‘The distributive award concept is consistent with the well-
established principle that trial courts have broad discretion when creating an
equitable division of property in a divorce proceeding.’” Strauss, 8th Dist. Cuyahoga
No. 95377, 2011-Ohio-3831, at ¶ 39, quoting Adams v. Chambers, 82 Ohio App.3d
462, 466, 612 N.E.2d 746 (12th Dist.1992), citing Teeter v. Teeter, 18 Ohio St.3d 76,
479 N.E.2d 890 (1985). Thus, a trial court has broad discretion in determining
whether a distributive award is equitable and appropriate under R.C. 3105.171(E).
Gentile v. Gentile, 8th Dist. Cuyahoga No. 97971, 2013-Ohio-1338, ¶ 55; Tilmant v.
Tilmant, 5th Dist. Knox No. 2004CA000024, 2005-Ohio-5939, ¶ 21, citing Adams.
And a reviewing court may reverse a trial court’s division of property only upon a
showing of an abuse of that discretion. Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d
1140.
In overruling Husband’s sixteenth objection to the magistrate’s
decision, the trial court found that the magistrate was not required to make a
distributive award. The court stated that the magistrate sanctioned Wife for alleged
financial misconduct and found “it would be unreasonable to subject [Wife] to both
sanctions and make a distributive award for the same alleged violations.” The court
then concluded that the magistrate made an equitable division of property based
upon the evidence before him, and it overruled Husband’s objections.
Husband claims on appeal that Wife engaged in several acts of
financial misconduct, including a withdrawal of $150,274.93. Wife testified,
however, that she withdrew these funds on the same day that she received the
complaint for divorce and did not understand the significance of the documents
because she had no legal representation at the time. Wife further testified that she
redeposited $148,775.93 less than one week after withdrawing the funds. Husband
also claims that Wife engaged in financial misconduct by issuing a check in the
amount of $100,000 to Wife’s daughter. Wife testified, however, that her daughter
returned those funds. Husband claims that Wife paid $45,000 for her daughter’s
wedding and “Husband was not invited to the wedding, although marital funds had
been used.” Husband fails to demonstrate, however, that this expenditure is
financial misconduct.
Husband claims that several other checks purportedly issued by Wife
for Wife’s daughter’s college expenses and minor son’s school expenses are evidence
of Wife’s financial misconduct. Husband fails to demonstrate that these
expenditures were the deliberate dissipation or fraudulent disposition of marital
assets made with the intent to defeat Husband’s interest in the marital assets.
Finally, Husband claims that Wife engaged in “significant divorce
planning,” had not spoken to Husband since 2011-2012, consulted with “several
divorce lawyers prior to being served with the divorce complaint,” and paid an
attorney $900 in 2015. Husband fails to show how Wife’s consultation with divorce
attorneys and her failure to speak with Husband is financial misconduct.
Moreover, the record demonstrates that where the magistrate found
Wife had engaged in misconduct, he sanctioned her. As discussed previously in this
opinion, the magistrate sanctioned Wife for withdrawing funds and for selling the
Bendemeer property in violation of the mutual restraining orders by awarding
Husband the $50,000 Wife had already advanced Husband from the Bendemeer
proceeds.
In light of the foregoing, and upon a thorough review of the record,
we cannot find the trial court abused its discretion in failing to order a distributive
award. Husband’s twelfth assignment of error is overruled.
V. Wife’s Cross-appeal
A. Wife’s Supplemental Objections
In Wife’s first cross-assignment of error, she claims the trial court
abused its discretion in prohibiting her from filing supplemental objections to the
magistrate’s decision on the basis that she failed to file a praecipe. In support, Wife
argues that she gave notice of her intent to file supplemental objections as required
when she filed her preliminary objections, and Husband had already filed a
praecipe.
Pursuant to Civ.R. 53(D)(3)(b)(iii), a party that files timely
objections to a magistrate’s decision prior to the date on which a transcript is
prepared “may seek leave of court to supplement the objections.” Loc.R. 27(1)(c) of
the Cuyahoga County Domestic Relations Court provides that “[a] party filing
objections that require a transcript must file his or her objections within the fourteen
(14) day time period * * * , and must file a Notice of Intent to supplement objections
after the transcript has been completed, for which leave will automatically be
granted.” If a party is objecting to factual findings in the Magistrate’s decision, a
transcript of the record of proceedings must be filed. Loc.R. 27(2)(a). And under
the local rules, the party filing objections must order the transcript and file a
praecipe “within the initial fourteen (14) day period after the date the magistrate’s
decision is filed.” Loc.R. 27(2)(c). The failure to timely file the praecipe “shall result
in the objections as to factual findings being overruled.” Loc.R. 27(2)(f).
Here, on April 30, 2018, Wife filed timely objections to the
magistrate’s decision, entitled “Defendant’s Preliminary Objections to Magistrate’s
Decision.” In that same document, Wife filed a “Motion for Extension of Time to
Submit Supplemental Objections.” Within the motion, Wife stated:
Pursuant to Civ.R. 53 and Local Rule 7, Defendant hereby reserves her
right to file Supplemental Objection to the within the matter.
Defendant respectfully requests 45 days after the filing of the
transcript to supplement her Objections with additional arguments or
to remove arguments made based upon the transcript and review of
the evidence. As the Court is aware, Defendant’s prior counsel
recently withdrew from this matter and successor counsel, having
literally just filed his Notice of Appearance in this matter, needs time
to review the file and the pleadings and the Decision prior to
Supplementing the Objections.
Thereafter, also on April 30, 2018, the trial court granted Wife’s
former counsel’s motion to withdraw as counsel of record, and Wife’s new counsel
filed a notice of appearance. On May 14, 2018, the court addressed Wife’s motion
for extension of time to submit supplemental objections filed on April 30, stating as
follows:
Pursuant to Loc.R. 27, [Wife] has fourteen (14) days following the
completion of the transcript and the filing of the notice of availability
of transcript, to file her supplemental objections. As the transcript has
not yet been prepared, the pending motion for an extension of time is
premature. Should [Wife] require additional time beyond the
fourteen (14) days to file her supplemental objections, she must follow
the procedures outlined in Local Rule 27.
Following several intervening motions, on June 11, 2018, Wife filed
a motion for extension of time to submit supplemental objections and to respond to
Husband’s supplemental objections. On June 15, 2018, however, the court issued
an order denying Wife’s motion, stating, “[Wife] is not permitted to file
supplemental objections, as she did not file a praecipe []or a notice [of intent] to
supplement objections.”
We find that although Wife did not caption her motion filed on April
30, 2018, as a “Notice of Intent to Supplement Objections,” in accordance with
Loc.R. 27(1)(c), this motion undoubtedly provided sufficient notice to the court of
Wife’s intent to file supplemental objections. Within this motion, Wife expressly
stated that she “reserved” her right to file supplemental objections. Indeed, the
record demonstrates that the court was aware of Wife’s intent to file supplemental
objections when it advised her on May 14, 2018, that her motion for an extension of
time to file supplemental objections was “premature.”
Moreover, the record demonstrates that Husband filed a praecipe
requesting a transcript on April 19, 2018. The local rules provide that if a party is
objecting to factual findings in a magistrate’s decision, he or she must file a
transcript of the proceedings, if one is available. Loc.R. 27(2)(a). And as previously
stated, in order to obtain the transcript, the party filing objections must file a
praecipe requesting the court reporter prepare the transcript. Loc.R. 27(2)(c). The
local rules do not expressly require that each objecting party file a praecipe. And
because the purpose of the praecipe is to order a transcript of the proceedings to be
filed with the court, so that the magistrate may properly review the facts set forth in
the transcript, the filing of a second praecipe would be redundant.
Under the foregoing circumstances, we find the trial court’s order in
prohibiting Wife from filing supplemental objections was arbitrary and
unreasonable. Although Wife filed numerous preliminary objections that
extensively addressed the magistrate’s findings, and we are hard-pressed to discern
what objections remain to be made, we are constrained to find the trial court abused
its discretion.
Wife’s first cross-assignment of error is sustained.
B. Motion to Intervene
In Wife’s second cross-assignment of error, she contends the trial
court erred when it granted her former counsel’s motion to intervene in the action.
In support, Wife claims that the court’s order permitting the law firm of Skirbunt &
Skirbunt L.L.C. to intervene in the pending divorce action allowed Skirbunt to
assume a position directly adverse to its former client.
We note initially that Skirbunt filed a “notice of intent to brief” with
this court on April 10, 2019, which Wife opposed, arguing that Skirbunt lacked
standing to file a brief. Because we find Skirbunt’s notice an appropriate vehicle in
which to protect its interests in its attorney fees, we consider Skirbunt’s argument
on appeal.
Skirbunt represented Wife during the trial. Thereafter, in his
decision issued on April 5, 2018, the magistrate determined that, aside from
attorney fees relating to the parties’ contempt and “general misconduct,” Husband
and Wife would be responsible for their own respective attorney fees. The
magistrate found the parties’ respective attorney fees “to be both reasonable and
appropriate under the circumstances, and based on the evidence presented at trial.”
On April 16, 2018, the trial court ordered the payment of $54,269.83 to Husband’s
attorneys and $44,262.40 to Skirbunt. On April 27, 2018, Skirbunt filed a motion
to withdraw as counsel, which the court granted on April 30, 2018. On May 8, 2018,
Wife filed a motion to partially vacate the court’s order of April 16 and a motion to
stay disbursement and for temporary restraining orders, arguing that she was
engaged in a fee dispute with Skirbunt. Skirbunt denies this claim. On May 15, 2018,
Skirbunt filed a motion to intervene pursuant to Civ.R. 24(A)(2), claiming a third-
party interest in the outcome of the trial. On May 30, 2018, the trial court granted
Skirbunt’s motion to intervene. Skirbunt then, as a third-party defendant, filed a
brief in opposition to Wife’s motion to vacate. On January 28, 2019, the trial court
issued its final divorce decree, reiterating its adoption of the magistrate’s decision
concerning the parties’ respective attorney fees.
The granting or denial of intervention is discretionary and will not
be disturbed on appeal without a showing that the trial court abused its discretion.
Likover v. Cleveland, 60 Ohio App.2d 154, 158-159, 396 N.E.2d 491 (8th Dist.1978).
Under Civ.R. 24(A), intervention as of right, one shall be permitted
to intervene in an action
when the applicant claims an interest relating to the property or
transaction that is the subject of the action and the applicant is so
situated that the disposition of the action may as a practical matter
impair or impede the applicant’s ability to protect that interest, unless
the applicant’s interest is adequately represented by existing parties.
Civ.R. 24(A)(2).
Although intervention as a matter of right is to be liberally construed
in favor of the putative intervenor, the intervenor must establish all of the following
requirements under Civ.R. 24(A)(2):
“(1) the intervenor must claim an interest relating to the property or
transaction that is the subject of the action; (2) the intervenor must be
so situated that the disposition of the action may, as a practical matter,
impair or impede the intervenor’s ability to protect his or her interest;
(3) the intervenor must demonstrate that his or her interest is not
adequately represented by the existing parties; and (4) the motion to
intervene must be timely.”
Cleveland v. State, 8th Dist. Cuyahoga No. 92735, 2009-Ohio-6106, ¶ 6, quoting
Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d 827, 830-831, 591 N.E.2d 1312(10th Dist.1990), quoting Blackburn v. Hamoudi, 29 Ohio App.3d 350, 505 N.E.2d
1010 (10th Dist.1986), syllabus.
In Ohio, however, in the absence of a statute, third persons generally
do not have a right to intervene in a divorce action. Rielinger v. Rielinger, 8th Dist.
Cuyahoga No. 90614, 2009-Ohio-1236, ¶ 68, citing Civ.R. 75(B); Maher v. Maher,
64 Ohio App.2d 22, 410 N.E.2d 1260 (6th Dist.1978) (citations omitted). “Indeed,
the object of Civ.R. 75(B) is to prevent the intervention of a third-party to a divorce
action.” Chrisman v. Chrisman, 12th Dist. Warren No. CA99-01-006, 2000 Ohio
App. LEXIS 937, 5, citing Foster v. Foster, 9th Dist. Medina No. 1735, 1989 Ohio
App. LEXIS 57, 5 (Jan. 11, 1989) (affirming the trial court’s denial of an attorney’s
motion to intervene for attorney fees because a “contract between attorney and
client is to be litigated and reviewed in an action separate from the divorce action”).
Outlining the circumstances that permit intervention in divorce
cases, Civ.R. 75(B) provides as follows:
Civ.R. 14, 19, 19.1, and 24 shall not apply in divorce, annulment, or
legal separation actions, however:
(1) A person or corporation having possession of, control of, or
claiming an interest in property, whether real, personal, or mixed, out
of which a party seeks a division of marital property, a distributive
award, or an award of spousal support or other support, may be made
a party defendant;
(2) When it is essential to protect the interests of a child, the court
may join the child of the parties as a party defendant and appoint a
guardian ad litem and legal counsel, if necessary, for the child and tax
the costs;
(3) The court may make any person or agency claiming to have an
interest in or rights to a child by rule or statute, including but not
limited to R.C. 3109.04 and R.C. 3109.051, a party defendant;
(4) When child support is ordered, the court, on its own motion or
that of an interested person, after notice to the party ordered to pay
child support and to his or her employer, may make the employer a
party defendant.
Therefore, third parties may intervene when “‘they have a claim or
interest in property involved in the divorce action, which claim or interest may be
adversely affected by the divorce proceeding.’” Chrisman, quoting Maher at 22.
Here, Skirbunt does not have an interest in the marital property.
Rather, its interest is only in recovering its own attorney fees. And Skirbunt has an
alternate means to protect its interests in the form of civil litigation to collect its fees.
Foster.
We therefore find the trial court abused its discretion in allowing
Skirbunt to intervene in the divorce proceeding to collect its attorney fees.
Wife’s second cross-assignment of error is sustained.
C. Attorney Fees
In her third cross-assignment of error, Wife claims the trial court
erred when it issued a “sua sponte award of attorney fees with no such motion
pending, after the magistrate’s decision but before the judgment of entry of divorce.”
Because Wife’s argument is completely devoid of citations to portions of the
transcript or any legal authority in support of her position, we decline to address it.
Strauss, 8th Dist. Cuyahoga No. 95377, 2011-Ohio-3831, ¶ 72, citing Martin, 12th
Dist. Warren No. CA99-01-003, 1999 Ohio App. LEXIS 3266 (July 19, 1999); Najjar,
8th Dist. Cuyahoga No. 91789, 2009-Ohio-3880 at ¶ 9.
D. Penalty for Wife’s Violation of Restraining Orders
In her fourth cross-assignment of error, Wife claims the trial court
erred by imposing a sanction of $50,000. Although Wife initially states that the trial
court “abused its discretion when it imposed 100 hours of community service and a
$50,000 penalty” for her alleged violation of the mutual restraining orders by selling
the Bendemeer property, her assignment of error is directed only at the $50,000
sanction. Indeed, the only legal authority cited within the entire assignment is
Robiner v. Robiner, 8th Dist. Cuyahoga No. 67195, 1995 Ohio App. LEXIS 5425(Dec. 7, 1995), in which this court found the trial court did not abuse its discretion
when it determined that money spent by the wife in violation of a restraining order
was offset by the husband’s failure to pay temporary spousal support, and therefore,
the husband was not entitled to reimbursement. We therefore will only address the
$50,000 sanction here.
Wife argues that the Bendemeer property was premarital and she did
not know that the restraining order “prevented her from having control over her own
pre-marital property.”
When a party violates the terms of a restraining order, the court has
the discretion to make a distributive award to the party aggrieved by the violation of
the restraining order or compensate the offended spouse with a greater award of
marital property. R.C. 3105.171(E)(4); Rodgers, 8th Dist. Cuyahoga No. 105095,
2017-Ohio-7886, at ¶ 30.
Here, the magistrate found Wife in contempt of the court’s
restraining orders where she sold the Bendemeer property and withdrew funds
“from multiple accounts.” And in awarding the sanction, the magistrate found
Wife’s actions especially egregious in light of the fact that Wife testified about the
Bendemeer property at trial after she sold the property, yet “she made no mention
of the sale.” The magistrate found this behavior “the best evidence of her
consciousness of guilt” and “unreasonable to conclude that significant detail merely
slipped [Wife’s] mind.”
Additionally, although Wife claims on appeal that she was not aware
that she could not sell “her own pre-marital property,” Wife’s own testimony belies
that fact. When questioned about the Bendemeer sale, Wife explained that she was
approached by potential buyers, but she initially told them, “I’m going through a
divorce and, you know, I cannot sell it right now.” But, as she testified, the buyers
pressured her to make the sale and she acquiesced: “So I told my tenant until trial
is over, I’m not — I don’t want to go through [with a] transaction. And then in
February, [the buyers] approached me again and they said to me that ‘we are going
to go move forward with a purchase of [another] property.’” At the time of the sale,
the divorce proceedings were ongoing, the temporary restraining orders were in
place, and Wife acknowledged that she was aware that some of her assets were
“frozen.” Moreover, the Bendemeer property was purchased with the Bayless
settlement proceeds, and the determination of whether these proceeds were
separate or marital property was in fact the subject of the divorce litigation. Wife
therefore could not reasonably assume that the Bendemeer property was her
separate property at the time of the sale. In adopting the magistrate’s decision, the
court found that the magistrate was in the best position to weigh the evidence.
In light of the foregoing, we cannot find the court’s sanction of
$50,000 against Wife was an abuse of discretion.
Wife’s fourth cross-assignment of error is overruled.
E. Credit for Attorney Fees and GAL Fees
In Wife’s fifth cross-assignment of error, she claims the trial court
abused its discretion when it failed to credit her for advancing $77,000 of attorney
fees to Husband’s counsel and for Wife’s payment of $20,000 of GAL fees. She
contends that she made these payments and they were not factored into the division
of marital assets and liabilities.
Wife objected to the magistrate’s decision on the foregoing basis. In
overruling her objection, the trial court stated in the divorce decree as follows:
In [Wife’s] second objection, she argued the magistrate erred and
abused his discretion when he failed to credit [Wife] for advancing
attorney fees totaling $77,000.00 to [Husband’s] counsel, and for
paying all of the GAL fees totaling $20,000 in the final calculation of
the division of the parties’ assets and liabilities. [Wife] claimed the
court erred upon failing to either credit her for these payments or to
reallocate them in the financial calculation of the division of the
parties’ assets and liabilities and property. A review of the docket
reveals in the judgment entry journalized on August 1, 2016, the court
ordered an equal allocation between the parties for GAL fees. As
discussed previously, the magistrate found the Bendemeer property
was sold in violation of the temporary restraining order. In the
judgment entry journalized on July 14, 2017, this court allocated
proceeds from the sale of the Bendemeer property for [Husband’s]
attorney fees, [Wife’s] attorney fees, and a portion for mutual GAL
fees. [Wife] did not present any evidence to support her argument
[that] she paid $77,000 toward [Husband’s] attorney fees. There is
nothing in the [Wife’s] argument to show there was an order by this
court for her to pay $77,000 toward [Husband’s] attorney fees. [Wife]
failed to establish she paid all the GAL fees.
As it relates to Wife’s argument concerning attorney fees, however,
on September 29, 2016, the trial court ordered Wife to pay Husband’s attorney fees
as an advance against the eventual property division awarded to Husband as follows:
IT IS FURTHER ORDERED, ADJUDGED and DECREED that the Ex
Parte Temporary Restraining Order dated August 17, 2015 be and
hereby is released such that Fidelity Investments shall issue a check
payable to Cavitch, Familo & Durkin in the sum of $77,731.83 of which
$27,142.85 is currently due and payable and $50,588.98 shall be
further retainer for attorney fees and expenses relative solely to the
law offices representation of [Husband] in the within matter. * * *
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
distribution to Cavitch, Familo Durkin shall be an advance against the
ultimate property division awarded to [Husband] and, further, that
[Husband] shall not be prevented from making any arguments
relative to the final allocation of the $77,731.83 in this matter.
Moreover, the record supports Wife’s contention that the attorney
fees were in fact paid and they served as an advance against Husband’s property
division. On cross-examination, Husband’s counsel, Roger Kleinman,
acknowledged receipt of payment for attorney fees:
Q: And do I have that right that through August 31, 2017, your fees
were $125,265.12?
A: That was the unpaid portion.
Q: Okay. And that was through the end of trial, correct?
A: Correct.
Q: The amounts that you have received as advances against your
client’s property division, you received the sum of $77,731.83 on
September 29, 2016, correct?
A: Correct.
(Tr. 1611.)
In light of the above, the record establishes that the trial court did
indeed order Wife to pay $77,731.83 to Husband’s attorney as an advance against
Husband’s interest in the property division. And the record further establishes that
Wife paid these fees. The court’s failure to credit Wife with the payment is therefore
an abuse of discretion.
Wife also claims that she paid all of the $20,000 GAL fees and the
court’s failure to credit her with the same was error.
On August 1, 2016, in an agreed judgment entry, the parties agreed
to pay equal shares of the GAL fees:
It is further ordered, adjudged, and decreed that the parties shall each
make regular payments, upon presentation of the invoices of the GAL,
for one-half of the fees as billed ([Husband] shall pay one-half and
[Wife] shall pay one-half), which fees shall be subject to the court’s
ability to entertain an application by any party for a different
allocation of those fees between the parties.
And within this order, the trial court ordered that “monies to pay
GAL ($5,000) shall be released from Wife’s KeyBank account which was the subject
of [a] prior hearing before the magistrate.”
In support of her claim that she paid all of the fees, rather than her
equal share, Wife cites to her own testimony at trial in which she testified on direct
examination concerning payment to the GAL:
Q: Did you write a check to cover the fees of [the GAL] and payable to
* * * the IOLTA account of my law firm?
A: Right. And I paid you.
Q: Did you write a check to my firm?
A: Yes.
Q: All consistent with the court’s order, correct?
A: Absolutely. * * *
(Tr. 1343.)
This testimony, however, does not establish that Wife paid the GAL
fees of $20,000. In fact, the GAL testified that he “received a check by agreement of
the parties — I don’t know who [it] came from, that was a partial release of a
restraining order back in the late summer of 2016.” (Tr. 1594.) And the GAL’s fourth
motion and application for fees (GAL’s exhibit No. 1) includes a single payment of
$5,000 made on August 29, 2016. Therefore, at most, the record establishes that
Wife paid $5,000 to the GAL, which is far short of the total GAL fees of $20,000
Wife claims she paid.
In light of the foregoing, Wife has failed to demonstrate that, despite
the court’s order that the parties pay their equal share, she paid all of the GAL fees
amounting to $20,000. The court, therefore, did not abuse its discretion when it
overruled her objection concerning payment of the GAL fees.
Wife’s fifth cross-assignment of error is sustained as it relates to
attorney fees and overruled as it relates to GAL fees.
F. Compensation for Personal Property
In her sixth cross-assignment of error, Wife claims the trial court
erred when it awarded $12,250 to Husband for personal property in the division of
the marital estate due to “lost items of personal property stored at the Bendemeer
residence [that Wife] sold.”
The magistrate determined that awarding Husband $12,250 for
Husband’s purported “lost” items when comparing the appraised values of the
parties’ respective real estate was “equitable.” The trial court overruled Wife’s
objection and adopted the magistrate’s decision regarding the “lost” personal
property.
Husband testified that he stored some personal items on the third
floor of the Bendemeer house while the property was rented. According to Husband,
he drove by the property one day and noticed his personal items on the tree lawn.
He learned that Wife had instructed the tenant to discard the items on the lawn with
the garbage. When asked about the personal items he recovered from the lawn, the
following discussion concerning the items and their purported value, in its entirety,
occurred:
Husband: Well, there [are] tools. There [are] golf clubs. There [are]
some very expensive faucets. Probably $3,000. There is lot[s] of —
some of the stuff, I picked things. Some valuable stuff [was] gone.
Attorney: What is your personal belief about the value, the total value
of your things that were store at Bendemeer that are missing?
Husband: Honestly, I don’t know. I would have to sit down and really
think about it. It’d been sitting there for a while. Some of it
appreciated. Some of it lost value. You know, I don’t want to — I
would have to — I don’t know. Few thousand dollars for sure. $5,000.
Attorney: Okay. Somewhere between 2 and 5 thousand dollars?
Husband: There you go. * * * Yes.
The record shows that Wife sold the Bendemeer property during the
pendency of this divorce action and against the court’s order, and Husband
apparently learned about the sale after driving through the neighborhood. Although
a trial court enjoys broad discretion in deciding what is equitable upon the facts and
circumstances of each case, and in this case the magistrate deemed equitable the
$12,250 awarded to Husband in light of the appraised values of the parties’
respective real estate, there is nothing in the record that supports the magistrate’s
assigned value to Husband’s purportedly lost items. In fact, other than Husband’s
general recollection of a few items that may have been located in storage at the
Bendemeer property and his best guess as to the items’ value, there is no evidence
of the purportedly lost items. At most, the record arguably supports an award of
$5,000 to Husband.
Wife’s sixth cross-assignment of error is sustained.
G. Double Dip
In her seventh cross-assignment of error, Wife claims the trial court
erred when it awarded Husband $58,418.64 for his share of the Bendemeer property
when Wife had previously paid Husband $43,000 for his share of the property, thus
constituting a duplicate award, or a “double dip.” Within this assignment of error,
Wife identifies her own testimony that she paid Husband $43,000 from the
proceeds of the sale and asserts that because the trust account that contained the
remainder of the proceeds was also divided between the parties, Husband’s receipt
of $29,209.32 from the trust was a “double dip.”
A trial court abuses its discretion when it counts a marital asset twice
— once in the property division and again in the spousal support award. Dean v.
Dean, 8th Dist. Cuyahoga No. 95615, 2011-Ohio-2401, ¶ 31, citing Heller v. Heller,
10th Dist. Franklin No. 07AP-871, 2008-Ohio-3296, ¶ 19.
The court awarded Husband $50,000 from the proceeds of the sale
of the Bendemeer property as “compensation for the funds [Wife] knowingly
withdrew in violation of mutual restraining orders and as a sanction for [Wife’s]
multiple contempt findings.” Therefore, because the $50,000 was a sanction, it does
not constitute a double dip.
Wife’s seventh cross-assignment of error is overruled.
H. Division of Personal Property
In her eighth cross-assignment of error, Wife claims the trial court
abused its discretion in the division of certain personal property located in a safe
deposit box, including “rings,” a gold watch, “bracelets,” and cuff links. Wife
essentially argues that the trial court erred in believing Husband’s testimony,
because the property is unsubstantiated, unknown to Wife, or does not exist.
Regarding the personal property, the magistrate concluded as
follows:
To the extent the [gold watch, rings, bracelets, and cuff links] exist and
can be identified, the court awards them to [Husband]. It is inherently
problematic [that] these items were not described in further detail, as
the description of, for example, “rings” is so ambiguous it lends itself
to the possibility of confusion, especially between these parties.
Nonetheless, if [Wife] is in possession of any of the above items, the
court orders her to turn them over to her counsel within 30 days of
the journalization of the divorce decree, so they may be returned to
[Husband] through his attorney.
Husband claimed that the jewelry in the safe deposit box is his
separate property. He provided pictures of items purportedly in the box. Husband
testified specifically regarding an engagement ring for which he paid $12,000 in
cash, and he provided an appraisal for the ring. Although the magistrate found both
parties in this divorce action lacked credibility, the magistrate evidently found some
of Husband’s testimony credible concerning items in the safe deposit box for which
Husband provided supporting documentation. We defer to the magistrate as the
factfinder to determine the credibility of the witnesses. Allan, 8th Dist. Cuyahoga
No. 107142, 2019-Ohio-2111, at ¶ 80. And we have no basis for concluding that the
magistrate lost his way in finding that these jewelry items are Husband’s separate
property.
Wife’s eighth cross-assignment of error is overruled.
I. Child Support
In her ninth and final assignment of error, Wife contends that the
trial court erred when it failed to order Husband to pay child support during the
pendency of the divorce.
Civ.R. 75(N) governs the granting of temporary spousal and child
support and permits a trial court to grant temporary support “for the party’s
sustenance and expenses” that occur during the pendency of a divorce action. “A
temporary order is merely an order to provide for the needs of the parties during the
pendency of the divorce action.” Schumann v. Schumann, 8th Dist. Cuyahoga Nos.
83404 and 83631, 2005-Ohio-91, ¶ 50. The award and the amount of temporary
spousal and child support rests within the broad discretion of the trial court. Davis
v. Davis, 12 Ohio App.3d 38, 40, 465 N.E.2d 917 (8th Dist.1983).
On September 6, 2016, the magistrate held a hearing on the parties’
motions for support. On September 27, 2016, following the hearing and after
consideration of documents submitted by the parties, including income and expense
affidavits, briefs containing tax returns and pay stubs, lists of real estate properties,
and other financial information, the magistrate found as follows:
[The parties] * * * have one minor child. [Wife] lives in the marital
residence. The minor child is enrolled in a boarding school * * *.
There is no monthly mortgage payment for the marital residence. The
monthly real estate taxes and homeowner’s insurance are $420. It is
unknown where [Husband] lives currently.
The Court finds that for purposes of temporary support the [Wife’s]
annual gross income is a base salary of $105,000 and $35,000 per
year in commissions. She also has net rental income, exclusive of
depreciation expense, of approximately $29,755.
[Husband’s] 2014 tax return shows adjusted gross income of $15,034.
He states in his brief that he is self-employed in the real estate
business. He has nine rental properties, some of which are in LLC’s
and some of which are multiple units. [Husband] executed a loan
agreement with the Telshe Alumni Gemilus Chesed Fund where he
lists his occupation as “financial advisor.” [Husband’s] 2014 income
tax return states his principal business or profession as “financial &
real estate consulting.”
The magistrate determined that Wife has sufficient income available
to cover all of the child’s needs while he is staying in her home and she has been
paying the child’s private boarding school expenses. The magistrate then ordered
that “no child support order is made at this juncture of the proceedings * * * as the
child is enrolled in a residential school and does not reside permanently with either
parent.” The magistrate reserved jurisdiction to make a retroactive child support
determination, if any, at the final hearing.
On March 8, 2017, Wife filed a motion to modify the temporary
support. She claimed in her motion that she was involuntarily terminated from her
employment and her gross income “has decreased by $140,000.” She also claimed
that she did not have sufficient funds to continue to pay for the entirety of the
expenses related to the minor child. Wife failed to present any evidence in support
of her argument, and she failed to cite to any legal authority to support a
modification. Following a hearing, the magistrate denied Wife’s motion for
modification. Rather, the magistrate concluded that Husband’s child support
obligation should commence on January 1, 2018. In overruling Wife’s objections,
the trial court found that Wife failed to present any evidence or cite to any legal
authority in support of her argument regarding temporary child support and the
magistrate was in the best position to weigh the evidence.
From the record before us, and in light of the fact that Wife did not
effectively contest the magistrate’s findings, we fail to find the trial court abused its
discretion in denying Wife’s motion for temporary child support.
Wife’s final cross- assignment of error is overruled.
Judgment affirmed in part, reversed in part, and remanded to the
trial court for proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, domestic relations division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, P.J., CONCUR