Collins v. Collins

[Cite as Collins v. Collins, 2012-Ohio-749.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
AMANDA M. COLLINS,
PLAINTIFF-APPELLEE, CASE NO. 9-11-32
v.
DAVID W. COLLINS, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 2009 DR 0329
Judgment Affirmed
Date of Decision: February 27, 2012
APPEARANCES:
Kevin P. Collins for Appellant
Keith A. Kochheiser for Appellee
Case No. 9-11-32
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, David W. Collins (“David”), appeals the
judgment of the Marion County Court of Common Pleas, Family Division,
finalizing the property division and other issues in his divorce from Plaintiff-
Appellee, Amanda M. Collins, nka Amanda M. Wood (“Amanda”). On appeal,
David contends that the family court erred in calculating his salary for child
support purposes; that it erred in valuing one of the vehicles; and that the property
division was unequal and inequitable. For the reasons set forth below, the
judgment is affirmed.
{¶2} Amanda and David were married on August 17, 2002, and two
children were born during the marriage. On November 4, 2009, Amanda filed a
complaint for divorce, and David also filed a counterclaim for divorce. The parties
participated in mediation as to issues regarding the children and agreed on a
shared parenting plan.
{¶3} The final divorce hearing in this matter was held on April 26 and June
30, 2010. The parties had reached agreement on a number of matters, so the
primary issues that still remained to be decided were the division of Amanda's and
David's debts, consisting mostly of student loan debt; child support; and the
division of assets, consisting primarily of their retirement funds. Both Amanda
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and David testified at the hearing and presented exhibits for the family court to
consider in dividing their marital and separate property.
{¶4} On August 26, 2010, the family court filed its judgment entry in this
matter. The court ordered that the parties equally divide their retirement funds by
QDRO (Amanda had one, with STRS, and David had two, with STRS and PERS).
The court awarded the marital home to David and ordered that he be responsible
for the mortgage debt thereon. The court further awarded both of the parties the
vehicles each had in their respective possession, including any debt on the vehicle
in his or her possession. Amanda was ordered to pay child support of $123.73 per
month, and David was to continue to provide health insurance coverage. Amanda
was ordered to pay 60% of the daycare expenses of the children, and David was to
pay the remaining 40%.
{¶5} As to their student loan debts, the family court ordered that Amanda
would be responsible for paying $14,700.00 on a Great Lakes student loan that
was in her name and was taken out before the marriage, and David would be
responsible for paying $13,000.00 on two student loans that were in his name and
had also been taken out before the marriage. In addition, the parties jointly owed
$39,000 to CFS for a consolidated student loan taken out during the marriage that
served to consolidate loans that both Amanda and David had incurred. The parties
had agreed that David would be responsible for paying 60% of this consolidated
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loan and Amanda would pay 40%, meaning that David and Amanda would each
pay $23,400 and $15,600 respectively. There were also two credit card debts of
$1,000 and $3,000 that the parties were ordered to pay.
{¶6} In 2010, Amanda appealed this decision, raising three assignments of
error, and David filed a cross appeal, setting forth six assignments of error. See,
Collins v. Collins, 3d Dist. No. 9–10–53, 2011-Ohio-2339, affirmed in part and
reversed in part (hereinafter, “Collins I”). This Court found merit in some of
Amanda and David’s assignments of error and remanded with the following
instructions.
In summation, we reverse this matter for the trial court's failure to
(1) restore Amanda to her prior name; (2) properly calculate child
support based upon the evidence presented as to David's actual
income; (3) determine the date of termination of the marriage; (4)
explain why each party was ordered to pay the credit card debts that
were in the other party's name or to order the parties to be
responsible for the credit card debt incurred in each party's
respective name; (5) explain the valuation placed on the 2000 Ford
Explorer; (6) explain the division of the student loans obligations
between the parties; and (7) either distribute the marital
property/debt equally or explain how the significant discrepancy in
the distribution is, nevertheless, equitable. In addition, as previously
noted, upon remand the trial court should also correct its error in
unilaterally modifying a portion of the shared parenting plan by
following the mandates of R.C. 3109.04. Id. at ¶48.
{¶7} Without holding any further hearings, the family court reviewed the
record and filed its judgment entry on June 29, 2011, addressing the issues raised
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by this Court. David now appeals this order, raising the following three
assignments of error.
First Assignment of Error
The family court erred to the prejudice of David by determining
Amanda’s child support obligation to be $123.73.
Second Assignment of Error
The family court erred to David’s prejudice by changing the
valuation of the 1995 Ford Explorer despite the fact that neither
party had assigned that vehicle’s valuation as an error on
appeal.
Third Assignment of Error
The family court erred to David’s prejudice by dividing the
marital estate inequitably and unequally.
First Assignment of Error—Income/Child Support
{¶8} In making the determination that Amanda was obligated to pay
$123.73 child support to David, the family court entered $39,689 for Amanda’s
annual gross income and $27,248 for David’s annual gross income on the child
support worksheet. In our previous review, we found that the family court
correctly listed Amanda’s gross income based upon her 2009 W-2, but we did not
find sufficient support for the family court’s determination as to David’s income.
Collins I at ¶ 20. Upon remand, the family court explained that it based the
computation of David’s income upon his testimony that he earned $13.10 per hour
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at his full-time employment with the grounds maintenance division of OSU-
Marion. (See Tr. at p. 26 and Defendant’s Ex. 21, paystubs). After explaining its
calculations, the court ordered that child support would remain as previously
ordered.
{¶9} David asserts that the family court abused its discretion because it
based Amanda’s income on her 2009 W-2, but his income was based on his
testimony as to his salary in April of 2010, instead of using “$22,277.36” as his
income “as established by his 2009 W-2.” (Appellant’s Brief, p. 7.) David
complains that the court’s computations were “arbitrary and inequitable” by using
Amanda’s income as a teacher from 2009. He argues that the court should have
projected her income for 2010, “which would have included a 15% raise during
the school year beginning in September, 2010,” according to Amanda’s testimony.
(Id.)
{¶10} Pursuant to R.C. 3119.02, a court or child-support-enforcement
agency must calculate the amount of a child support obligation according to the
schedules and worksheets provided in R.C. 3119.02 to 3119.24. The family court
may deviate from the amount determined by using the appropriate worksheet only
if after considering the factors and criteria set forth in R.C. 3119.23, it finds that
the amount “would be unjust or inappropriate and would not be in the best interest
of the child.” R.C. 3119.22. The applicable worksheet for this case is found in
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R.C. 3119.022, entitled “Child Support Computation Worksheet for Sole
Residential Parent or Shared Parenting Order,” because the family court ordered
shared parenting. “Gross income” is defined as “the total of all earned and
unearned income from all sources during a calendar year, whether or not the
income is taxable.” R .C. 3119.01(C)(7).
{¶11} David’s arguments fail on several points. First, his 2009 W-2 lists
his total wages as over $25,000, not $22,277, which only represents his federal
taxable income. Furthermore, even the $25,000 figure does not appear to be
accurate, as his paystub from December 4, 2009, lists his wages as $13.10 per
hour, for a forty-hour week, and lists his total year-to-date earnings as of early
December as $25,666.17. (Def.’s Ex. 21.) It is evident that $13.10 per hour was
his salary in 2009 as well as 2010. Based upon these figures in the record, along
with David’s testimony that he earned $13.10 per hour, we do not find any error in
the family court’s computation of David’s gross income.
{¶12} In his previous appeal, David raised the issue concerning the
inclusion of Amanda’s potential salary increase. This Court found that the family
court would have been engaging in speculation as to her future earnings and held
that “the trial court did not err in relying upon the evidence actually before it to
determine Amanda’s gross income.” Collins I at ¶ 21. Therefore, this issue is
barred by res judicata. Furthermore, the record also shows that David testified that
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he was due to receive a salary increase on July 1, 2010. By not engaging in
speculation and disregarding both parties’ potential, but not yet realized, 2010
salary increases, the family court was completely consistent in its calculation of
their gross incomes.
{¶13} We find no error in the family court’s computations of David’s and
Amanda’s gross incomes, which are fully supported by the evidence in the record.
The first assignment of error is overruled.
Second Assignment of Error –Valuation of Vehicles
{¶14} The parties had agreed that they would each keep the vehicle that
they were currently driving. In the original judgment entry, for purposes of
valuation and the division of property, the family court awarded Amanda the 2000
Ford explorer “valued at $3,850.00 and debt on same” and it awarded David the
1995 Ford Explorer “valued at $1,950.00” (with no outstanding debt). (Aug. 26,
2010 J.E.)
{¶15} In Collins I, we found these valuations to be incorrect because there
was testimony from Amanda that the 2000 Explorer was valued “in the $5,000.00
range” and David testified that the Kelley Blue Book showed that the 2000
Explorer was valued at $5,495.00. Collins I at ¶ 42. David also supported his
testimony with a Blue Book website printout, admitted as Defendant’s Exhibit 7.
We found that the family court’s incorrect evaluation left a discrepancy in the
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division of assets and debts, and remanded with instructions for the division of
property to be “based upon accurate values of that property * * *.” Id. at ¶ 47.
The family court corrected this error in the June 29, 2011 judgment entry, stating
the following:
[Amanda] was Ordered to retain the 2000 Ford Explorer valued at
$5,495.00, with an outstanding debt on same to Citigroup of $768.00
for a net value of $4,727.00. [David] was Ordered to retain the 1995
Ford Explorer valued at $2,500.00.
{¶16} In his second assignment of error, David agrees that the family court
properly corrected the wrong valuation assigned to the 2000 Explorer. However,
he complains that neither party had assigned the 1995 Explorer’s valuation of
$1,950 as an error and that the family court abused its discretion by changing this
finding when this Court did not order a change in the 1995 vehicle’s valuation.
{¶17} We do not find any basis for David’s argument, as our previous
opinion clearly directed the trial court to base the property divisions “upon
accurate values” of the property. Collins I at ¶ 47. The record contains
considerable evidence that the correct valuation of the 1995 Explorer was
approximately $2,500. David’s Pre-Trial Statement lists the value of the 1995
vehicle as $2,500; the Kelly Blue Book printout for the 1995 Explorer, admitted as
Defendant’s Exhibit 8, lists its value as $2,975 (Tr. p. 103); David’s sworn
affidavit of November 2009 lists the 1995 Explorer with a value of $3,000;
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Amanda’s trial testimony stated that she thought the vehicle’s value was $2,500
(Tr. p. 64); and, when asked what his opinion was for the value of the 1995
Explorer, David testified that “$2,500 is an accurate statement” (Tr. p. 103).
{¶18} For whatever reason, the trial court mistakenly used incorrect
numbers for the valuation of both vehicles in the original judgment entry. The
trial court was directed on remand to utilize the correct valuations in order to
effectuate an equal or equitable property division. The trial court had the
jurisdiction to correct all of the inaccuracies in the original judgment entry. To
have utilized a clearly erroneous valuation for the 1995 Explorer would have been
inconsistent and incorrect. David’s second assignment of error is overruled.
Third Assignment of Error – Equitable Property Division
{¶19} In Collins I, this Court directed the family court to “explain the
division of the student loans obligations between the parties; and * * * either
distribute the marital property/debt equally or explain how the significant
discrepancy in the distribution is, nevertheless, equitable.” Collins I at ¶ 48. In
the new judgment entry, the trial court explained why it assigned David the entire
balance of the mortgage, along with awarding him the house, and it explained why
it made David responsible for 60% of the consolidated student loan. After
providing the required explanation, the family court stated that it had considered
all of the relevant factors as set out in the Revised Code and concluded that the
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“assignment of assets and indebtedness as contained herein is an equitable division
of same pursuant to Ohio Revised Code Section 3105.171(B).” (6/29/11 J.E., p. 4)
{¶20} In this third assignment of error, David claims that the property
division was still inequitable. He asserts that he never agreed to assume the
responsibility for the larger portions of the debts without it being taken into
account in the property distribution, and that Amanda should pay him $8,969 in
order to effectuate an equal division of the marital property.
{¶21} The Ohio Revised Code requires a trial court to “determine what
constitutes marital property and what constitutes separate property.” R.C.
3105.171(B). The court is then required to “divide the marital and separate
property equitably between the spouses.” Id. The Revised Code further requires
that a trial court divide the marital property equally unless an equal division would
be inequitable, in which case “the court shall not divide the marital property
equally but instead shall divide it between the spouses in the manner the court
determines equitable.” R.C. 3105.171(C)(1).
{¶22} Trial courts have “broad discretion to determine what property
division is equitable in a divorce proceeding.” Cherry v. Cherry, 66 Ohio St.2d
348, 421 N.E.2d 1293 (1982), paragraph two of the syllabus. A trial court's
decision allocating marital property and debt will not be reversed absent an abuse
of discretion. Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597-11-
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(1989). An abuse of discretion is more than a mere error; 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).
{¶23} In the June 29, 2010 Judgment Entry, the trial court stated the
following concerning the allocation of the house and mortgage to David:
Although the Court accepted the Marion County Auditor assessed
value for the marital residence of $78,370.00, which was agreed by
the parties, no formal appraisal of same was conducted. In addition,
both parties agreed the approximated indebtedness owed on the
marital residence was $83,000.00 which [David] was willing to
assume to keep the real estate and he did not request any credit for
his assumption of this joint marital debt. Both parties remain
obligated on the original mortgage debt to Fifth Third Bank, and the
Court finds assignment of the entire mortgage balance to [David] is
equitable based upon his interest in retaining the residence and his
lack of any objection to same. The Court is unable to speculate
whether [David] will be able to refinance the mortgage debt, and
thereby eliminate [Amanda’s responsibility to repay same, whether
[Amanda] may ultimately be held responsible for this debt by the
mortgagee, or whether the accepted value of the marital residence is
even accurate. (Emphasis added, J.E., p. 4)
David now disputes that he was willing to assume the debt without any set-off
credit for it.
{¶24} The parties purchased their home in 2004 for $84,000. A few years
later they refinanced the home, and the testimony established that there was
currently an outstanding balance of approximately $83,643 on the mortgage. No
appraisal was done on the property. The only valuation discernible from the
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record was a copy of the Marion County Auditor’s valuation of the property at
$78,370. There was some testimony by each of the parties as to the value of the
home, but much of that was not transcribed and marked as “inaudible.”1 (See, e.g.,
Tr. at p. 58-59 and 102-103).
{¶25} At the conclusion of the hearing in June of 2010, the family court
noted that there was no clear consensus as to what the parties wished to do with
the marital home.
The Court: Okay. I have one question that both of you need to
answer right now. What do you want to do with this house?
Because if I don’t get one of you asking for it, I’m going to order it
be sold. I have no other choice. I just can’t leave the biggest asset
or obligation out there subject to no one asking what their position is
on it. So either it’s gonna – one of you is going to take it and
assume whatever I feel is appropriate as far as the financial
responsibility for it, or I’m going to order it be sold for whatever
price it brings and assign whatever equity or proceeds would be
appropriate under the circumstances. So I need to know that aspect.
***
Amanda: I have no intention of living in it.
The Court: All right.
David: I will keep it, Your Honor.
(Emphasis added, Tr. pp. 133-134)
1
The transcription, done from a tape recording, contained numerous places where the testimony was not
transcribed and was marked as “inaudible.” No supplementation of the incomplete transcription was
made, as provided for in App.R.9(C) and (D).
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{¶26} The testimony above shows that David was willing to keep the house
along with whatever financial responsibility for it that the trial court felt was
appropriate. Although David contends that it was unfair to assign him the
approximately $5,000 in negative equity in the home (if the auditor’s valuation
was accurate), the record shows that David agreed to accept the benefits of the
owning the house, along with its liabilities. Amanda had no desire to keep the
house, so it was David’s choice not to have it sold and settle the financial
ramifications at that time. And, there was also testimony from Amanda that she
had been paying thousands of dollars toward the mortgage and utility payments for
the home since the previous October or November, even though she had not been
living in the house nor obtaining any benefit from it. (Tr. p. 77, where Amanda
testified that there was “$3,908.50 that was going toward the mortgage on a house
that I didn’t have access to * * *.”)
{¶27} Furthermore, the comments by the trial court in the judgment entry
indicated that it was not completely convinced that the auditor’s valuation was
accurate. The record indicates that there was testimony and discussion concerning
the value of the property, but it was “inaudible.” In the absence of a complete
transcript of the proceedings, a statement of the evidence pursuant to App.R. 9(C),
or an agreed statement pursuant to App.R. 9(D), an appellate court “has no
alternative but to indulge the presumption of the regularity of the proceedings and
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the validity of the judgment in the trial court.” Tyler v. Tyler, 3d Dist. No. 9-88-50,
1990 WL 97662 (Jul. 16, 1990), quoting Ostander v. Parker-Fallis Insulation
Co., Inc., 29 Ohio St.2d 72, 74, 278 N.E.2d 363 (1972); Beer v. Beer, 10th Dist.
No. 04AP-93, 2004-Ohio-4559, ¶ 9. Based on all of the above, we cannot say that
the trial court’s decision concerning the property and its associated debt was
unreasonable, arbitrary, or unconscionable.
{¶28} David also complains about being required to pay for 60% of the
approximate $39,000 consolidated student loan. However, there was considerable
testimony indicating the majority of the consolidated loan was used to pay for
loans incurred exclusively for David’s schooling. Both parties agreed that
Amanda only had loans covering about two years out of the two-and-a-half years
it took her to complete her education, while David took out loans covering about
three-and-a-half to four years of the five years he attended college. (Tr. pp. 94-95
and 100) Amanda had records for her three federal student loans, originally
totaling $6,000, which she testified were incorporated into the consolidated loan.
(Tr. p. 93) David testified that her share was higher than that, but did not provide
any figure or records to support his testimony. Amanda testified that she could not
provide additional records because David had taken care of the entire
consolidation process and she did not have access to his passwords to obtain any
records from CFS. (Tr. p. 90)
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{¶29} Although there was more testimony concerning the student loans,
and the parties’ prior agreement as to how they arrived at their respective
payments towards the loan prior to the hearing, much of that testimony was also
marked as “inaudible.” Multiple portions of testimony concerning the student
loans were marked as “inaudible” on pages: 86, 88, 90-92, 98-100 of the
transcript. As stated above, without a complete record, we must presume that the
findings of the fact-finder are correct, as the fact-finder based the decision upon
hearing all of the testimony at the time of the hearing. Given the testimony that
was in the record, along with the presumption of regularity as to the trial court’s
findings concerning the missing testimony, we again cannot find that the trial
court’s decision concerning the division of the consolidated student loan was
unreasonable, arbitrary, or unconscionable.
{¶30} Based on the above, we do not find the trial court abused its
discretion in its division of property and debts, and its explanation as to why it was
equitable. David’s third assignment of error is overruled.
{¶31} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the family court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
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