Baum v. Perry-Baum

[Cite as Baum v. Perry-Baum, 2019-Ohio-3923.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
David Baum Court of Appeals No. WD-18-085
Appellee Trial Court No. 2013 DR 0140
v.
Jennifer L. Perry-Baum DECISION AND JUDGMENT
Appellant Decided: September 27, 2019
*****
Patricia Hayden Kurt and Alex M. Savickas, for appellee.
Martin J. Holmes, Sr., for appellant.
*****
ZMUDA, J.
{¶ 1} This is an appeal from the Wood County Court of Common Pleas, Domestic
Relations Division, which granted plaintiff-appellee, David M. Baum and defendant-
appellant, Jennifer L. Perry-Baum a divorce, with the final decree resolving the parties’
dispute over property valuation and distribution, allocation of marital debt, contempt
accusations, and attorney fees. Finding no error in the trial court’s decision, we affirm.
I. Background and Procedure
{¶ 2} Appellant and appellee married on May 10, 1991, and have one emancipated
child, a daughter born May 10, 1999. Appellee is self-employed in his insurance and
investment business, David M. Baum Insurance and Investments. Appellee’s primary
line of work is the sale of employee benefits. He also sells investments, life insurance,
and other types of insurance, receiving a commission as part of his earnings. In addition,
appellee is part owner of Butler Capital Advisors and Coventry Woods Property
Development, owning a half-interest in these entities with his business partner, as well as
a half-interest in the office building housing David M. Baum Insurance and Investments.
{¶ 3} Early in the marriage, appellant helped start appellee’s insurance and
investment business, providing administrative support and designing spreadsheets to
assist with bookkeeping. Appellant also worked outside of the home early in the
marriage as a benefits administrator for The Andersons, but for over 20 years she has
been unable to work, and receives Social Security disability payments of about $23,000
annually.
{¶ 4} The parties also received income from rental properties, including farm
property and three rental homes. During the marriage, appellee managed these
properties, procuring tenants, collecting rents, and arranging for repair and upkeep of the
properties.
{¶ 5} On July 16, 2013, appellee filed a complaint for divorce, and appellant
responded with a counterclaim for divorce. The trial court entered temporary orders,
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requiring appellee to pay household expenses “as he has been doing,” all prescription and
medical expenses “either directly or, if charged, to the credit card company,” and to pay
“a minimum of $2,000.00 per month toward [appellant’s] outstanding credit card
balance.” The trial court later clarified this order, limiting appellee’s obligation for
appellant’s credit card charges to medical-related expenses, food expenses up to $600 per
month, pet expenses, and household expenses up to $100 per month. As to additional
charges, the trial court ordered “[a]ny other charges shall be paid by [appellant].”
Appellee remained obligated for household expenses including the mortgage, taxes,
phone, utilities, expenses for the parties’ minor child, and the minimum payment on all
the credit cards, paying at least $2,000 per month.
{¶ 6} Throughout the proceedings, disputes arose over discovery, with delays
caused by both appellant and appellee, and the parties disagreed over interpretation of the
temporary orders relative to appellee’s monthly obligation. Appellant believed appellee
should pay all her credit card charges, averaging about $20,000 per month, in addition to
the mortgage, utilities, taxes, and other non-credit card expenses. Appellant also
submitted a complaint against appellee with the Financial Industry Regulatory Authority
(FINRA), after appellee withdrew funds from one of their daughter’s accounts, resulting
in investigation of appellee and his business. Appellant and appellee each filed motions
to show cause/motions for contempt, which the trial court addressed.
{¶ 7} Prior to trial, the parties reached an agreement regarding the division of
some of the marital property. By agreement, appellant retained the marital home and the
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income properties, with the rental income increasing her annual earnings to
approximately $41,830.68. Appellant also agreed to withdraw her FINRA complaint,
and the parties placed their daughter’s accounts with another investment broker.1
Disputes remained, however, regarding the value of appellee’s business and personal
property, and the equitable distribution of the parties’ assets and debts.
{¶ 8} The matter proceeded to trial to address unresolved disputes on December 6
and 7, 2016, January 23, March 14, April 27, May 1, and June 5, 2017. Appellant and
appellee each presented expert testimony regarding the valuation of appellee’s businesses
and valuation of personal property. The parties also introduced testimony and exhibits
concerning allocation of property and credit card debts.
{¶ 9} On August 16, 2017, the magistrate filed her decision, and appellee and
appellant each filed a timely objection. Pertinent to this appeal, appellant objected to the
magistrate’s decision to value appellee’s business at $250,000, and objected to the
magistrate’s determination that she was obligated to pay credit card debt and loans listed
in her name. Appellant also objected to the amount of attorney fees appellee was ordered
to pay, along with the determination that the attorney fees be taxable as additional
spousal support. Finally, appellant objected to the magistrate’s finding regarding
contempt and her motions to show cause. Appellant did not object to the magistrate’s
1
The parties dispute whether appellant withdrew her complaint, and whether FINRA
found wrongdoing, but the record indicates FINRA completed its review and made a
determination “not to take action” against appellee, communicated by FINRA in a letter
to appellant sent April 15, 2016.
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provision that required agreement of both appellant and appellee in the use of their
daughter’s accounts.
{¶ 10} Appellee also filed objections, including an objection to the magistrate’s
order that appellee file an amended 2015 tax return, removing deductions claimed for
alimony payments to appellant, prior to the final decree. Additionally, appellee requested
an order that the parties be required to file a joint income tax return, instead, and
appellant filed no response to this objection and request.
{¶ 11} On October 26, 2018, appellant filed a new motion to show cause, seeking
to enforce the magistrate’s decision. Appellant requested an order compelling appellee to
endorse insurance checks, to execute various property deeds, and make payments in
accordance with the magistrate’s decision. Additionally, appellant asked the trial court to
find appellee in contempt and to sanction him for his failure to comply with the
magistrate’s decision.
{¶ 12} On November 5, 2018, the court entered judgment on the objections,
granted the parties an absolute divorce, ordered appellee to pay spousal support for 108
months in the amount of $5,000 per month, ordered division of the parties’ property and
debts, and adopted the magistrate’s findings as to the value of appellee’s business and the
magistrate’s determination regarding appellant’s credit card debt. The trial court also
ordered the parties to file an amended joint tax return for 2015. As to appellant’s request
for a finding of contempt and sanctions, the court found no contempt, and entered an
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order dismissing all other motions. It is from this judgment that appellant now appeals,
asserting the following assignments of error:
Assignment of Error No. 1: The trial court’s valuation of Husband’s
businesses and calculation of Husband’s payment to Wife to offset the
value of Husband’s awarded real estate, personal property, and life
insurance, were against the manifest weight of the evidence and/or an abuse
of discretion.
Assignment of Error No. 2: The trial court’s award of all credit card
and loan debt in Wife’s name to Wife was against the manifest weight of
the evidence and/or an abuse of discretion, as Wife’s use of credit cards
was necessitated by Husband’s failure to pay temporary orders.
Assignment of Error No. 3: The trial court abused its discretion in
applying the incorrect statutory factors to the calculation of the attorney
fees Husband was ordered to pay to Wife, including but not limited to
characterizing the attorney fees as property division and making them
taxable to Wife and tax deductible to Husband.
Assignment of Error No. 4: The trial court abused its discretion in
failing to hold Husband in contempt for violating temporary orders,
injunctions, and Local Rules, and in dismissing, without a hearing, all
motions pending at the time the Magistrate issued her decision, including
Wife’s motion for contempt.
6.
Assignment of Error No. 5: The trial court’s division of personal
property was an abuse of discretion and/or against the manifest weight of
the evidence, because, including but not limited to, the trial court
incorrectly awarded to Husband certain furniture and other items purchased
during the pendency of the divorce, but prior to final hearing.
Assignment of Error No. 6: The trial court improperly ordered that
the custodial account for the parties’ daughter shall only be used by
agreement of [the] parties, as the parties had otherwise agreed that the
account would be placed in Wife’s name only for the benefit of the parties’
daughter.
Assignment of Error No. 7: The trial court erred in ordering Wife to
file a joint income tax return with Husband for the year 2015, despite
Wife’s legitimate concern that the Husband’s representation of his income
for that year is false.
II. Analysis
{¶ 13} Appellant challenges certain rulings made in the final decree, arguing the
trial court’s determinations are against the manifest weight of the evidence and that the
trial court abused its discretion. We shall address appellant’s assignments of error in
turn, noting the applicable standards of review.
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A. Business Valuation
{¶ 14} In her first assignment of error, appellant challenges the trial court’s
acceptance of appellee’s expert valuation of the business as either an abuse of discretion
or against the manifest weight of the evidence. Essentially, appellant argues that
appellee’s valuation was too low, based on the evidence presented, and that her expert’s
business valuation was more accurate. As a result of this claimed error, appellant argues
that the trial court’s calculation of payment to appellant, to offset the value of assets
awarded to appellee, created an inequitable division of property and constituted an abuse
of discretion.
{¶ 15} “We review factual determinations of the value of marital property to see
whether they are against the manifest weight of the evidence.” (Citation omitted.) Moore
v. Moore, 175 Ohio App.3d 1, 2008-Ohio-255, 884 N.E.2d 1113, ¶ 50 (6th Dist.). In
determining the value of property, “a trial court is not confined to the use of a particular
valuation method, but can make its own determination as to valuation based on the
evidence presented.” Miller v. Miller, 6th Dist. Sandusky No. S-16-27, 2017-Ohio-7646,
¶ 21, citing Chattree v. Chattree, 2014-Ohio-489, 8 N.E.3d 390, ¶ 43 (8th Dist.). We will
not reverse the trial court’s judgment unless we find a lack of competent, credible
evidence in support. Moore at ¶ 50, citing C.E. Morris, Co. v. Foley Const. Co., 54 Ohio
St.2d 279, 280, 376 N.E.2d 578 (1978).
{¶ 16} As to determinations regarding property awards in divorce proceedings, a
trial court “may divide property as it deems equitable, * * * [with] broad discretion in
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arriving at an equitable property division.” Berish v. Berish, 69 Ohio St.2d 318, 319, 432
N.E.2d 183 (1982), quoting Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293(1981).
{¶ 17} At trial, both parties introduced expert testimony and reports regarding the
value of appellee’s business. Appellant’s expert applied both an income and market
approach in reaching his determination, while appellee’s expert utilized an income
approach. Appellant does not challenge the qualifications of appellee’s expert, but
instead, argues appellee’s expert relied inordinately on appellee’s self-reported,
unverified income and expenses, and failed to consider the market factors. Appellant
argued that her expert’s combined income and market approach provided the better, and
more accurate, valuation.
{¶ 18} In finding appellee’s valuation of $250,000 represented the fair market
value for the business, the trial court determined an income approach most accurate. The
trial court noted deficiencies with appellant’s valuation, including appellant’s emphasis
on the investment component of the business out of proportion with appellee’s actual
business, and the appellant’s use of comparable business data, using a market approach,
that did not align with appellee’s unique business. After considering the evidence, the
trial court found appellee’s expert valuation more reliable and valued the business at
$250,000. In reaching this determination, the trial court noted that appellee’s expert,
unlike appellant’s expert, spent time with appellee, learning about the “specific nature of
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[appellee’s] business, spent time with [appellee] to fully understand the unique mix of
revenue sources, and understood the locale and risk of [appellee’s] business.”
{¶ 19} In reviewing the record, we find no error in the trial court’s acceptance of
appellee’s valuation for his business. As evidenced by its decision, the trial court
carefully reviewed the magistrate’s factual findings and the record, and cited to
supporting evidence in the record in selecting appellee’s valuation. Accordingly, we find
the weight of the evidence supports the trial court’s determination as to the value of
appellee’s business.
{¶ 20} Finding no error in the valuation, it follows that the trial court did not abuse
its discretion in determining an equitable division of property based on this valuation.
Appellant argues an inequitable distribution of assets, arising from the trial court’s
valuation of the business.2 As previously noted, a trial court has “broad discretion in
arriving at an equitable property division.” Berish, 69 Ohio St.2d at 319, 432 N.E.2d
183, quoting Cherry, 66 Ohio St.2d at 355, 421 N.E.2d 1293. Appellant’s argument,
however, merely restates her challenge to the trial court’s determination in valuing
appellee’s business at $250,000, while also incorporating argument raised in separate
assignments of error relative to the allocation of credit card debt and decisions regarding
contempt of court related to the temporary orders. Based solely on the business
2
Appellant also references a vehicle, sold during the pendency of the divorce, as property
that the trial court should have credited to appellant, based on the fair market value. The
record, however, fails to demonstrate that appellant raised any objection relative to this
vehicle as part of the business valuation.
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valuation, we find no abuse of discretion by the trial court in determining the amount to
credit appellant in the property distribution. Appellant’s first assignment of error,
therefore, is not well-taken.
B. Credit Card Debt
{¶ 21} In her second assignment of error, appellant challenges the allocation of
credit card debt as either an abuse of discretion or against the manifest weight of the
evidence, arguing the trial court incorrectly allocated the debt as her own debt, rather than
finding the amounts charged resulted from appellee’s failure to make all payments under
the temporary orders.
{¶ 22} As previously noted, we apply the manifest weight standard in reviewing
factual determinations regarding the value of marital property. See Moore, 175 Ohio
App.3d 1, 2008-Ohio-255, 884 N.E.2d 1113, at ¶ 50. In challenging the allocation of
marital debt, however, appellant does not dispute any amount of debt, arguing instead
that the trial court erred in dividing the debt. The issue is therefore one of property
division, and the manifest weight standard, accordingly, is inapplicable.
{¶ 23} “The property to be divided in a divorce proceeding includes not only the
assets owned by the parties, but also any debts incurred by the parties.” Beran v. Beran,
6th Dist. Wood No. WD-03-070, 2004-Ohio-2456, ¶ 20, citing Marrero v. Marrero, 9th
Dist. Lorain No. 02CA008057, 2002-Ohio-4862, ¶ 43. A trial court is “vested with broad
powers in determining the appropriate scope of property awards in divorce actions.”
Berish, 69 Ohio St.2d at 319, 432 N.E.2d 183 (1982). An equitable distribution,
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furthermore, does not always mean an equal distribution. Cherry, 66 Ohio St.2d at 355,
421 N.E.2d 1293.
{¶ 24} Construing the record, the trial court considered the value of real property
awarded to each party, as well as the value of marital retirement accounts, bank accounts,
and investment accounts, the cash value of life insurance policies, the value of personal
property, and the value of appellee’s business. The trial court deemed all credit card debt
as marital debt, and held each party responsible for the credit card debt in their own
name. As noted by appellee, moreover, the trial court allocated about two-thirds of the
marital debt to appellee, and ordered appellee to make a $15,000 payment to appellant to
apply toward her debt. Appellant’s challenge to the allocation of credit card debt ignores
the comprehensive evaluation and overall division of property and debt.
{¶ 25} As to appellant’s credit card debt, the trial court also addressed her
argument that appellee’s failure to comply with the temporary orders caused her credit
card debt to balloon, and found no merit in appellant’s argument. The record
demonstrated that appellant used about $60,000 of funds from a joint account for
litigation and other expenses, and appellant interpreted the temporary orders as requiring
appellee to pay everything she charged on her credit card. Appellant used credit cards for
dining out, travel, and shopping, in addition to household and medical expenses. The
temporary orders, however, clearly required appellee to pay for household expenses,
including the mortgage, taxes (house and auto), phone and all utilities, prescription and
medical expenses, pet expenses, food expenses up to $600 per month, and miscellaneous
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household expenses up to $100 per month, with an order that “[a]ny other charges shall
be paid by [appellant].” Appellant does not claim that appellee failed to make designated
payments, arguing instead that appellee failed to pay off her credit card balances each
month.
{¶ 26} Appellee was also obligated to “ensure that a minimum payment is made
on all their cards” and pay a minimum of $2,000 on the credit cards each month. While
there were months that appellee did fall short of the $2,000 amount, the trial court found
appellee substantially complied with the temporary orders, considering all relevant
circumstances. Accordingly, upon review of the record, we find no abuse of discretion
by the trial court in allocating appellant’s credit card debt to her as part of the overall
division of marital property and debt, and appellant’s second assignment of error is not
well-taken.
C. Attorney Fees
{¶ 27} Appellant next challenges the calculation and characterization of attorney
fees in her third assignment of error, arguing the award is too low and the trial court
incorrectly designated the award as additional spousal support. “An award of attorney
fees must be fair, equitable, and serve the ends of justice.” Steinle v. Steinle, 2018-Ohio-
3985, 120 N.E.3d 478, ¶ 41 (6th Dist.), citing Garritano v. Pacella, 6th Dist. Lucas No.
L-07-1171, 2009-Ohio-2928, ¶ 101, citing Bowen v. Bowen, 132 Ohio App.3d 616, 642,
725 N.E.2d 1165 (9th Dist.1999). An award of attorney fees is reviewed for abuse of
discretion. Id., citing Garritano at ¶ 101.
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{¶ 28} Appellant accrued attorney fees in the amount of $125,541.95 prior to the
final decree, and argues that the trial court’s award of fees in the amount of $25,000 was
an abuse of discretion. In determining an equitable award of attorney fees, a trial 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.” R.C. 3105.73(A). In awarding those fees as additional spousal support, the
trial court must also consider the equitable factors in R.C. 3105.18(C)(1). See Rohlman
v. Rohlman, 2018-Ohio-1543, 110 N.E.3d 1006, ¶ 19 (6th Dist.).
{¶ 29} Appellant argues that the trial court awarded attorney fees based on her use
of marital funds to pay some of her attorney fees and on her role in causing the FINRA
investigation, which she argues was within her rights to initiate as custodian for her
daughter’s accounts. Upon review, however, it is clear that the trial court considered the
necessary factors and recited findings in support of the award.
{¶ 30} As to spousal support, the trial court separately considered factors under
R.C. 3105.18(C)(1), including, in part, the income, education, and relative earning
capacity of the parties, the duration of the marriage and standard of living established
during the marriage, the age and health of the parties and their retirement benefits, the
relative assets and liabilities, and the tax consequences, for each, of an award of spousal
support. In determining an award of $5,000 per month as equitable spousal support, the
trial court considered both appellant’s need for assistance, considering the unequal
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earning capacity of the parties, and appellee’s need to maintain his own household and
expenses.
{¶ 31} As permitted by R.C. 3105.73(D), the trial court awarded attorney fees as
additional spousal support, referencing the findings of fact and addressing the factors
under R.C. 3105.73(A).3 The trial court noted that appellant’s attorney fees were over
$125,000 and appellee’s fees were approximately $78,000. The trial court further found
that both parties caused delay—appellee in producing discovery and appellant in “making
repeated requests for information in different formats and by making duplicative
requests.” Appellant also caused delay by initiating a FINRA investigation of appellee’s
business.
{¶ 32} The record in this case contradicts appellant’s claim that the trial court
exhibited bias toward her in ordering a low award of attorney fees. The trial court
considered the applicable factors, found appellant was responsible for some of the delay
in the proceedings and had already received $15,150 out of marital funds in the form of
attorney fees and litigation expenses, and awarded $25,000 in additional attorney fees as
additional spousal support, as permitted under R.C. 3105.73(D). We find nothing, within
the record, demonstrating this amount constituted an abuse of discretion.
{¶ 33} Additionally, appellant argues that the designation of the amount awarded
as additional spousal support was contrary to law, citing current law, 26 U.S.C. 212,
3
The magistrate referenced the correct statute within the findings of fact, but in the order,
referenced R.C. 3105.171 in error. The trial court corrected the error in the final decree.
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rather than the law in effect at the time of the final decree. The applicable law, former 26
U.S.C. 215, provided:
(a) In the case of an individual, there shall be allowed as a deduction
an amount equal to the alimony or separate maintenance payments paid
during such individual’s taxable year.
While Congress repealed 26 U.S.C. 215, the law remains in effect for spousal support
ordered by divorce decrees entered on or before December 31, 2018. See Baldwin’s Oh.
Prac. Dom. Rel. L. 28:2 (4th Ed.) (“[T]he effective date for this law change is for any
divorce or separation agreement executed after December 31, 2018.”) (Emphasis sic.).
{¶ 34} Upon review of the record and applicable law, we find no error in the trial
court’s award of $25,000 as additional spousal support, designated as taxable to appellant
and deductible by appellee. Appellant’s third assignment of error, therefore, is not well-
taken.
D. Contempt
{¶ 35} Appellant next argues, in her fourth assignment of error, that the trial court
abused its discretion in dismissing “all pending motions,” without hearing, and failing to
hold appellee in contempt for violating temporary orders. We review the denial of a
motion for contempt for abuse of discretion. Sigel Seaman v. Sloan, 2016-Ohio-5432, 60
N.E.3d 1270, ¶ 12 (6th Dist.), citing Beck v. Beck, 6th Dist. Fulton No. F-007-021, 2008-
Ohio-4027, ¶ 19. We will not reverse the determination unless we find the trial court’s
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attitude in ruling was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 36} At the time of the trial court’s final decree, only one motion remained
pending, as the trial court had addressed all other motions for contempt prior to or within
the magistrate’s decision. Contrary to appellant’s argument, moreover, the trial court
addressed appellant’s prior motions throughout the proceedings after hearing, with the
final ruling entered after the completion of the trial. Therefore, appellant’s claim that the
trial court failed to hold hearing is without merit.
{¶ 37} The magistrate reviewed appellant’s claims regarding the temporary orders
and found no contempt. Appellant objected to this finding, and the court considered the
objections and reviewed the record. The court found the magistrate’s ruling “properly
determined that there should be no finding of contempt.” This finding was clearly within
the trial court’s discretion. See, e.g., State ex rel. Celebrezze, 60 Ohio St.3d 69, 75, 573
N.E.2d 62 (1991) (“This court will not reverse the decision of the court below in a
contempt proceeding in the absence of a showing of an abuse of discretion.”).
{¶ 38} Furthermore, while the trial court did not hold hearing as to appellant’s
latest motion, filed after the magistrate’s decision but prior to the final decree, this motion
sought to enforce portions of the magistrate’s decision despite pending objections, not yet
addressed within a final decree. Therefore, appellant sought to enforce provisions that
had yet to take effect, since “[a] magistrate’s decision is not effective unless adopted by
the court.” Civ.R. 53(D)(4)(a). Additionally, appellant’s only pending motion sought to
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enforce matters not referenced in this appeal. Instead, appellant now challenges the
magistrate’s finding that appellee substantially complied with temporary orders, the
subject of prior motions, and the magistrate’s finding that appellant’s credit card debt and
loan remained appellant’s obligation, a component of the trial court’s distribution of
marital property and debt.4
{¶ 39} Punishment for contempt may be appropriate for violation of court orders,
pursuant to R.C. 2705.02. The orders which appellant seeks to enforce, however, are
temporary orders, superseded by the final decree entered by the trial court. The final
decree of divorce replaces “all that has transpired before it.” Colom v. Colom, 58 Ohio
St.2d 245, 247, 389 N.E.2d 856 (1979). “The right to enforce such orders ‘does not
extend beyond the decree, unless they have been reduced to a separate judgment or they
have been considered by the trial court and specifically referred to within the decree.’”
Trickey v. Trickey, 6th Dist. Lucas No. L-09-1307, 2011-Ohio-140, ¶ 19, quoting Colum
at the syllabus. Here, the trial court made a specific finding that “there is no finding of
contempt.”
{¶ 40} To the extent that appellant argues abuse of discretion or that a hearing is
necessary, the motion pending at the time of the final decree is wholly unrelated to any
issue argued in this appeal. Accordingly, with no pending motion addressing the issues
4
While appellant does reference the October 26, 2018 motion in her reply brief, she does
not address the substance of that motion in her appeal, reserving argument to her claims
that appellee violated temporary orders by not paying household expenses.
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now asserted on appeal, and no separate judgment as to any amounts claimed due under
the temporary orders, appellant may not seek to enforce any claimed deficiency on
appeal, in a collateral attack characterized as contempt. Appellant’s fourth assignment of
error, therefore, is not well-taken.
E. Personal Property
{¶ 41} In her fifth assignment of error, appellant challenges the property
distribution as an abuse of discretion or against the manifest weight of the evidence.
Appellant particularly notes, as error, the trial court’s award to appellee of “certain
furniture and other items purchased during the pendency of the divorce, but prior to final
hearing.”
{¶ 42} The trial court has “broad discretion to fashion a decree that is equitable
upon the facts and circumstances of each case.” Shilling v. Shilling, 6th Dist. Ottawa No.
OT-08-042, 2009-Ohio-1476, ¶ 18, quoting Guziak v. Guziak, 80 Ohio App.3d 805, 811,
610 N.E.2d 1135 (9th Dist.1992), citing Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554
N.E.2d 83 (1990); Teeter v. Teeter, 18 Ohio St.3d 76, 479 N.E.2d 890 (1985). In
dividing marital property, a trial court considers the following factors:
(1) The duration of the marriage;
(2) The assets and liabilities of the spouses;
(3) The desirability of awarding the family home, or the right to
reside in the family home for reasonable periods of time, to the spouse with
custody of the children of the marriage;
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(4) The liquidity of the property to be distributed;
(5) The economic desirability of retaining intact an asset or an
interest in an asset;
(6) The tax consequences of the property division upon the
respective awards to be made to each spouse;
(7) The costs of sale, if it is necessary that an asset be sold to
effectuate an equitable distribution of property;
(8) Any division or disbursement of property made in a separation
agreement that was voluntarily entered into by the spouses;
(9) Any retirement benefits of the spouses, excluding the social
security benefits of a spouse except as may be relevant for purposes of
dividing a public pension;
(10) Any other factor that the court expressly finds to be relevant
and equitable. R.C. 3105.171(F).
{¶ 43} At issue, here, is the trial court’s award of personal property to appellee,
purchased during the pendency of the divorce by appellee for his new home. In
challenging the award, appellant argues the trial court failed to assign a value to this
property, as marital property, ignoring the fact that appellee purchased the property with
credit cards or financing, and the balances remained unpaid and the sole obligation of
appellee. In the final decree, the trial court noted:
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In reviewing the transcript of this matter, the applicable law, and the
particular circumstances involved in [appellee’s] purchase of furniture,
furnishings, and appliances for his own home this Court finds that the
Magistrate properly determined the factual issues and appropriately applied
the law. In making this conclusion the Court makes particular note of the
Magistrate’s Finding of Fact 54, which is supported by the transcript in this
matter, finding that all of these items were acquired for the exclusive use of
[appellee], in a separate household never occupied by [appellant], and
remain the sole financial obligation of [appellee].
{¶ 44} While appellant argues that the trial court never determined the value of
these marital assets, it is clear the trial court determined the value to be completely offset
by the debt owed for this property. Appellee’s uncontroverted testimony supports this
finding, as appellee testified he obtained financing or used credit cards to furnish his new
home, and the debts for these furnishings remained unpaid. The trial court, therefore,
was within its discretion in awarding both the asset and the debt to appellee, and
appellant’s fifth assignment of error is not well-taken.
F. Custodial Accounts
{¶ 45} Appellant’s sixth assignment of error concerns the court-ordered joint
control over their daughter’s custodial accounts. Appellant argues that the trial court
erred in not designating her as sole custodian, based on the parties’ prior stipulation.
Appellee disputes appellant’s claim of a stipulation, noting the lack of any adoption by
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the court or reference within the final decree. Furthermore, appellee argues that appellant
waived this error in failing to object to the magistrate’s decision, which specified that the
funds be used for their daughter, “by agreement of the parties.”
{¶ 46} After thoroughly reviewing the record, we find no stipulation that
designates appellant as sole custodian, expressly adopted by the trial court. The custodial
accounts, moreover, are the property of the parties’ adult daughter, within months of her
21st birthday, and neither marital nor separate property of the parties. See Miller v.
Miller, 9th Dist. Wayne No. 07CA0061, 2008-Ohio-4297, ¶ 20, citing Wilson v. Wilson,
9th Dist. Wayne No. 95CA0089, 1996 WL 411631 at *5 (July 24, 1996) (custodial
accounts are neither marital nor separate property, but are property of the child). Finally,
appellant failed to object to the magistrate’s decision, which ordered the funds to be used
only for the benefit of the daughter “by agreement of the parties” until their daughter
reaches the age of 21.
{¶ 47} Pursuant to Civ.R. 53(D)(3)(b)(iv), “[e]xcept for a claim of plain error, a
party shall not assign as error on appeal the court’s adoption of any factual finding or
legal conclusion whether or not specifically designated as a finding of fact or conclusion
of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or
conclusion as required by Civ. R. 53(D)(3)(b).” In failing to object, appellant has waived
appellate review for all but error that “rises to the level of challenging the legitimacy of
the underlying judicial process itself.” Burns v. Burns, 6th Dist. Sandusky No. S-07-019,
22.
2008-Ohio-2483, ¶ 17, citing Seaburn v. Seaburn, 5th Dist. Stark No. 2004CA00343,
2005-Ohio-4722, ¶ 46 (additional citations omitted.).
{¶ 48} Appellant asserts no error that threatens “the legitimacy of the underlying
judicial process itself.” Instead, appellant argues a stipulated agreement that appellee
disputes, and that the trial court did not adopt. The stipulation upon which appellant
relies was contradicted within the magistrate’s decision, appellant failed to raise any
objection, and the trial court’s order, requiring the custodial accounts to be used by
agreement of the parties in no way threatens the legitimacy of the process. Appellant’s
sixth assignment of error, therefore, is not well-taken.
G. Joint Income Tax Filing
{¶ 49} In her seventh and final assignment of error, appellant argues that the trial
court erred in ordering the parties to file a joint tax return for 2015. While
acknowledging the trial court had authority to determine this issue, appellant argues that
forcing her to file a joint return for 2015 would expose her to potential civil or criminal
consequences based on her legitimate concern that appellee intends to file a fraudulent or
incorrect return.
{¶ 50} “As part of a property division, the trial court has authority to determine
whether the parties will file joint or separate tax returns.” Cherry v. Cherry, 6th Dist.
Ottawa No. OT-98-011, 1998 WL 904897 at *3 (Dec. 31, 1998); see also Bowen v.
Bowen, 132 Ohio App.3d 616, 725 N.E.2d 1165 (9th Dist.1999). While appellant raised
the issue of misconduct relative to appellee’s tax filing, a “trial court has discretion in
23.
determining whether a spouse committed financial misconduct, subject to a review of
whether the determination is against the manifest weight of the evidence.” Sullinger v.
Sullinger, 6th Dist. Lucas No. L-18-1079, 2019-Ohio-1489, ¶ 41, quoting Boggs v.
Boggs, 5th Dist. Delaware No. 07 CAF 02 0014, 2008-Ohio-1411, ¶ 73.
{¶ 51} Here, appellant argues that appellee may submit false information in his tax
filing, based on claims that appellee misrepresented personal expenditures as business-
related in prior tax filings, to achieve a higher refund. It is clear, however, that appellant
never objected to appellee’s request for a joint filing, which was raised by appellee in
objection to the magistrate’s order that he file an amended return to correct his deduction
for alimony. Additionally, appellant cites to no evidence in the record to support her
claim that appellee intends to file a fraudulent or inaccurate return. Therefore, we find no
basis to find the trial court abused its discretion in ordering a joint return, and appellant’s
seventh assignment of error is not well-taken.
III. Conclusion
{¶ 52} For the foregoing reasons, the judgment of the trial court is affirmed.
Appellant is assessed the costs of this appeal, pursuant to App.R. 24.
Judgment affirmed.
24.
Baum v. Perry-Baum
C.A. No. WD-18-085
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
25.