Kowalkowski-Tippett v. Tippett

[Cite as Kowalkowski-Tippett v. Tippett, 2021-Ohio-4220.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Christine E. Kowalkowski-Tippett, :
Plaintiff-Appellant, :
No. 20AP-228
v. : (C.P.C. No. 18DR-1326)
Henry C. Tippett, Jr., : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on December 2, 2021
On brief: Vassy Law Office, and Nicholas E. Vassy, for
appellant. Argued: Nicholas E. Vassy.
On brief: Ric Daniel, for appellee. Argued: Ric Daniel.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
DORRIAN, P.J.
{¶ 1} Plaintiff-appellant, Christine E. Kowalkowski-Tippett, appeals a March 20,
2020 judgment entry/decree of divorce ("decree") from the Franklin County Court of
Common Pleas, Division of Domestic Relations granting a mutual divorce to appellant and
defendant-appellee, Henry C. Tippett, Jr. For the following reasons, we affirm in part and
reverse in part the judgment of the trial court and remand.
No. 20AP-228 2
I. Facts and Procedural History
{¶ 2} The parties were married in Franklin County, Ohio, on July 19, 1990. Five
children were born as issue of the parties' marriage. As of trial, one child had not reached
the age of majority, namely S.A., born in 2001.1
{¶ 3} In March 2011, the Drug Enforcement Agency ("DEA") conducted a raid that
involved the parties. Due to the pending charges, the parties believed they would both face
incarceration and, therefore, the parties effectuated mutual powers of attorney ("POA").
Appellee signed a power of attorney appointing appellant as his attorney in fact on May 1,
2012 ("2012 POA"). Although not admitted into evidence at trial, appellant testified she
also executed a POA for appellee to serve as her power of attorney in the event of her
incarceration. In addition to the parties' mutual POAs, the parties also signed POAs to a
third party.
{¶ 4} The parties were indicted on charges in October 2014 stemming from the
DEA's raid. On July 1, 2015, appellee's bond was unexpectantly revoked at a criminal
hearing and he was taken into custody. Appellant testified that appellee called her after he
was in custody and directed her to take a new POA he had prepared and sign it and get it
notarized.2 Appellant explained that this POA would give authority to the parties' adult
children to act on appellee's behalf in the event appellant was also incarcerated. Appellant
signed the POA on July 15, 2015 ("2015 POA") as appellee, and appointed the parties' adult
children, Cody, Colton, and Tia Tippett, as appellee's lawful attorney. Appellant was
eventually incarcerated from June 2016 until August 2017. As of the final hearing in the
1 Appellant's complaint for divorce requested she be named residential parent and legal custodian of S.A.,
appellee's counterclaim also requested that custody of S.A. be awarded to appellant.
Pursuant to R.C. 3109.04(A): "In any divorce * * * proceeding * * *, upon hearing the testimony of either or
both parents * * * the court shall allocate the parental rights and responsibilities for the care of the minor
children of the marriage." R.C. 3109.01 identifies the age of majority as "[a]ll persons of the age of eighteen
years or more, who are under no legal disability."
The trial did not allocate parental rights and responsibilities for S.A. Specifically, the trial court held, "[t]he
Court makes no orders as to parenting time given that [S.A.] will be eighteen (18) years of age [i]n May * * *
2020." (Decree at 2.) Because this issue was not raised on appeal and S.A. has reached the age of majority, we
decline to further address the issue.
2Although not raised by either party on appeal, we note the 2015 POA was signed by appellant on July 15,
2015, however the date of the notary stamp is January 17, 2017.
No. 20AP-228 3
action for divorce, appellee remained incarcerated and was expected to be released in June
2021.
{¶ 5} Relevant to the issues presented on appeal, the parties owned a residence
they purchased during their marriage located on James Circle, Lake Alfred, Florida
("Florida property"). Appellee's parents resided in the Florida property for five years while
the parties paid the mortgage, however, two months after appellee was incarcerated they
vacated the property. Thereafter, appellant engaged a property manager to find tenants to
rent the Florida property and the rent received would be used to pay the mortgage on the
property.
{¶ 6} At the time appellant was incarcerated in June 2016, tenants occupied the
Florida property. Around July or August 2017, two weeks prior to her release from
incarceration, appellant was served with a complaint to foreclose on the parties' mortgage
on the Florida property. Appellant testified that while the parties were incarcerated the
mortgage on the Florida residence was not paid. Appellant contacted the bank about the
status of the parties' mortgage and learned the parties owed $15,000. Appellant discussed
with the bank options for the parties' deficit, however, appellant was not able to refinance
or apply for a loan due her recent incarceration effectively preventing her from providing
the requested proof of six months' employment and two years of tax returns necessary to
remediate the mortgage. Appellant also spoke with legal counsel regarding the foreclosure
and sent correspondence to the court in an attempt to avoid foreclosure on the property.
{¶ 7} Appellant testified she discussed the foreclosure action with appellee who
proposed that appellant should make partial payments; meaning appellant would pay short
of the monthly amount owed. Appellant testified the parties' daughter attempted this with
the parties' marital residence and found that the bank would return the short payment,
effectively resulting in non-payment. In the alternative, appellee desired to sell the Camaro.
Appellant testified she explained to appellee the Camaro had damage to the rear, side, and
front bumper.
{¶ 8} Ultimately, appellant did not believe that appellee had a practical solution to
prevent the foreclosure and she did not have $15,000 to pay the mortgage. Appellant
testified that she believed a foreclosure would result in further liabilities to the parties, and
therefore she sold the Florida property in a short sale. The Florida property was sold on
No. 20AP-228 4
October 17, 2017. The record evidences a warranty deed reflecting appellee and appellant
were named grantors on a warranty deed executed on October 17, 2017 for the sale of the
Florida property. The signature page of the warranty deed reflects the signatures of
appellant and appellee's attorneys in fact, the adult children, who signed pursuant to the
2015 POA.
{¶ 9} Records from the sale of the Florida property evidence that the proceeds of
the sale totaled $51,053.51 and were disbursed on October 17, 2017. Due to the parties'
federal tax liens, the proceeds from the sale were deposited into Tia's bank account because
appellant's account would have been garnished. Appellant testified that the proceeds from
the sale of the Florida property were spent on the following expenses: one-third to one-
fourth of the total received went toward joint marital debt ("[m]ine, mine or/and his." Tr.
at 139.); repairs to two residential properties of the parties; support for the parties minor
child S.A.; groceries for the household located at Hunting Creek Drive, which included
appellant, S.A., and the adult children; and Christmas presents for the parties' five children,
their spouses and seven grandchildren. The accounting also reflects $5,000 was used by
Tia to purchase a vehicle, a Pontiac, in addition to car repairs and purchases for the parties'
adult children.
{¶ 10} Appellant presented evidence through an exhibit that enumerated the
expenses paid with the proceeds of the sale of the Florida property. The exhibit reflects the
following:
Capital One 3678.55
Kohls 1232.35
Chase 3500 was 1099ed for difference [sic]
Target 2250
synchrony (hhgregg) 1541.42
12202.32
Groceries 3312.53
Tia car tax and title 5000
Car Insurance 1245.39
Christmas 4599.05
1993 3 months rent/carp 5662.91
house bills 403.92
gas 365.87
car parts 3348.39 blew tranny [sic]
my phone bill 97.23
Tip 208.95
No. 20AP-228 5
court fees 387.26
shopping kids clothes 843.38
sub total 37677.2
milams 4500
codys car 1400
my car and parts 2000
cody tools for school 500
groceries 500
house repairs 3650
50227.2
(Ex. 15A.) The expenses paid by the proceeds totaled $50,227.20.
{¶ 11} Appellant filed a complaint for divorce on April 3, 2018. Appellee filed an
answer on August 17, 2018 and an amended answer and counterclaim on November 9,
2018. Appellee's amended answer and counterclaim did not allege financial misconduct on
the part of appellant. However, the pre-trial statement filed by appellee stated that he
believed the Florida property "may have been sold inappropriately." (Appellee's Oct. 11,
2018 Pre-Trial Stmt. at 2.) Appellant filed an answer to appellee's counterclaim the
following day. The matter was set for trial after the first pre-trial. Appellant and Tia were
the only witnesses to testify during the two days of trial. Appellee remained incarcerated at
the time of trial and therefore was not present to testify, however, he was represented by
counsel who engaged in cross-examination of the witnesses. In closing argument,
appellee's counsel did not argue that appellant engaged in financial misconduct. Appellee
did not file with the court proposed findings of fact even though the trial court invited both
parties to file the same.
{¶ 12} The trial court issued a decree on March 20, 2020 granting each party an
absolute divorce from the other party. The court determined the duration of the parties'
marriage, awarded appellant certain separate property, divided the parties' marital
property, and made a finding of financial misconduct against appellant with regard to the
sale of the Florida property which resulted in a distributive award to appellee.
II. Assignments of Error
{¶ 13} Appellant appeals and assigns the following two assignments of error for our
review:
[I.] the Trial Court Erred when it Found Appellant Guilty of
Financial Misconduct Based Upon the Transfer of the Parties'
Property Located at [] James Circle, Lake Alfred, Florida.
No. 20AP-228 6
[II.] The Trial Court Erred when it Abused its Discretion in
Dividing the Marital Assets and Debts.
III. Analysis
A. Appellant's First Assignment of Error
{¶ 14} Appellant argues in her first assignment of error that the trial court abused
its discretion when it found appellant engaged in financial misconduct related to the sale of
the parties' Florida residence.
{¶ 15} This court has held, "[f]inancial misconduct occurs when one spouse engages
in some type of knowing wrongdoing, by which the spouse either profits or intentionally
interferes with the other spouse's property rights." Chawla v. Chawla, 10th Dist. No. 13AP-
399, 2014-Ohio-1188, ¶ 35, citing Taub v. Taub, 10th Dist. No. 08AP-750, 2009-Ohio-2762,
¶ 33; Heller v. Heller, 10th Dist. No. 07AP-871, 2008-Ohio-3296, ¶ 27; Hamad v. Hamad,
10th Dist. No. 06AP-516, 2007-Ohio-2239, ¶ 62. "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." R.C.
3105.171(E)(4). A "distributive award" under R.C. 3105.171(E)(4) is defined as any payment
or payments, in real or personal property, that are payable in a lump sum or over time, in
fixed amounts, that are made from separate property or income, and that are not made
from marital property. R.C. 3105.171(A)(1). The complaining spouse bears the burden of
proving financial misconduct. Chawla at ¶ 36, citing Heller at ¶ 27; Hamad at ¶ 61;
Galloway v. Khan, 10th Dist. No. 06AP-140, 2006-Ohio-6637, ¶ 26.
{¶ 16} An appellate court will not reverse a trial court's determination regarding
financial misconduct unless it is against the manifest weight of the evidence. Best v. Best,
10th Dist. No. 11AP-239, 2011-Ohio-6668, ¶ 18. A decision is not against the manifest
weight of the evidence where some competent, credible evidence supports the trial court's
findings. Taub at ¶ 15, citing Pearson v. Pearson, 10th Dist. No. 96APF08-1100 (May 20,
1997), citing State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). Weight of the evidence and
credibility of witnesses are issues left to the sound discretion of the trial court. Galloway
at ¶ 29, citing White v. White, 4th Dist. No. 03CA11, 2003-Ohio-6316, ¶ 15.
No. 20AP-228 7
{¶ 17} Here, the trial court found financial misconduct occurred when the Florida
property was transferred to third parties without the express authorization of appellee. The
trial court's determination of financial misconduct was based on the following findings:
(1) the 2015 POA was not valid,3 (2) the parties' adult children were not authorized to make
financial decisions on appellee's behalf, (3) appellant exceeded the authority granted to her
by the 2012 POA, (4) the Florida property was marital in nature, (5) appellant and the
parties' children profited from the sale of the Florida property, and (6) the proceeds of the
Florida property's sale were not divided with appellee. In accord with its finding, the court
compensated appellee with a distributive award in the amount of $25,526.76, an amount
representing half the proceeds of the sale of the Florida property. Appellant argues the trial
court's determination that appellant engaged in financial misconduct related to the sale of
the Florida property is not supported by evidence she engaged in wrongdoing (i.e., wrongful
scienter).4
{¶ 18} In support, appellant first argues that the timeframe of the alleged
misconduct does not establish knowing wrongdoing by appellant. To the contrary, appellee
points to the timing of the sale of the Florida property on October 17, 2017 and the timing
of appellant's filing for divorce less than six months later as evidence in support of the
finding of financial misconduct.
3 The decree reflects the trial court examined the validity of the POAs executed in 2012 and 2015 and found
that the 2012 POA was valid. However, the court further found that the 2015 POA was invalid because the
2012 POA did not expressly authorize appellant to transfer the POA to a third-party, appellee was not present
at the signing of the 2015 POA, and appellee did not sign the 2015 POA.
4 Appellant also argues that the court erred because she was authorized to transfer property on appellee's
behalf pursuant to the 2012 POA. Appellant submits that the trial court found the 2012 POA to be valid and
contends that had she been able to locate the 2012 POA she would have been able to use her authority to
transfer appellee's interest in the Florida property. Appellant cites in support the following provisions from
the 2012 POA:
(A) To take possession of, hold, and manage my real and personal property; * * * (G) To sell, exchange,
lease, give options, and make contracts concerning real or personal property, for such considerations
and on such terms as my attorney in fact my [sic] consider prudent; * * * (N) To execute in my name
and deliver contracts, deeds, mortgages, leases, security agreements, receipts, releases, returns,
reports, and other documents of any kind, as necessary or proper to give effect to any of the powers
under this instrument.
However, the 2012 POA was not used to transfer appellee's interest in the Florida property.
No. 20AP-228 8
{¶ 19} This court has recognized that the timeframe from when marital funds are
dissipated is a relevant factor in determining an inference of wrongdoing or misconduct.
Chawla at ¶ 37, citing Logan v. Logan, 10th Dist. No. 03AP-225, 2003-Ohio-6559, ¶ 22,
citing Hammond v. Brown, 8th Dist. No. 67268 (Sept. 14, 1995). Courts have found this to
be true especially when the dissipation occurs during the parties' separation, but caution
that a finding of financial misconduct can also be found during the marriage and prior to
the parties' separation, as every set of facts is different. Id.{¶ 20} The Florida property was sold on October 17, 2017 and the proceeds were
disbursed the same day. Appellant filed her complaint for divorce on April 3, 2018. As of
the time of the parties' final divorce hearing, the proceeds from the sale of the Florida
property were spent. Although there exists only six months between appellant receiving
the proceeds from the sale of the Florida property and the filing of her action for divorce,
we do not find that the timeframe alone, on the facts of this case, infers knowing
wrongdoing.
{¶ 21} Appellant points out and the record supports that the 2015 POA was executed
on July 15, 2015. At the time the 2015 POA was executed, the Florida property was
inhabited by appellee's parents with the expectation that the mortgage on the property
would be paid. Once appellee's parents vacated the property, appellant arranged for
tenants to rent the property with the intention that the rental payments would pay the
mortgage on the property. It was not until July or August 2017, near appellant's release
from incarceration, that appellant became aware there was a financial issue with the Florida
property. The Florida property was sold thereafter on October 17, 2017. From the time the
2015 POA was executed more than two years passed until the Florida property was sold.
{¶ 22} Appellant next asserts the record does not support that she engaged in
knowing wrongdoing at the time the 2015 POA was executed. In support of the finding of
knowing wrongdoing, appellee points to evidence that he was incarcerated when the 2015
POA was signed, therefore he was unable to intervene. He also argues the 2015 POA did
not disclose that it was signed by an agent on behalf of appellee.
{¶ 23} Appellant argues that in analyzing the 2015 POA, the trial court's focus on the
principal-agent doctrine was misplaced. Appellant argues instead that the question before
No. 20AP-228 9
the court was whether the execution of the 2015 POA by appellant was knowingly wrongful,
not whether the 2012 and 2015 POAs were valid instruments.
{¶ 24} Appellant testified that she believed the 2012 POA allowed her to make
decisions concerning the parties' businesses, homes, money, taxes, and debts. Appellant
also testified that appellee directed her to execute the 2015 POA. Appellant testified that
she expected to be incarcerated at some point, rendering her unable to exercise her
authority under the 2012 POA and further testified that the intention of the 2015 POA was
for the parties' adult children to act on the behalf of appellee and appellant in the event
appellant was also incarcerated.
{¶ 25} In appellee's absence, the 2015 POA was signed by appellant as "Henry
Tippett." When asked why the signature did not indicate that appellant was signing the
2015 POA on appellee's behalf, appellant testified she was unaware that she needed to sign
the 2015 POA in a manner other than what she had. According to appellant, she signed the
2015 POA, first, under the belief that she had the authority pursuant to the 2012 POA;
second, because appellee directed her to do so; and third, because the parties spoke with
the 2012 POA notary who was aware of the parties' impending criminal circumstances.
Based on her understanding of the authority granted to her by the 2012 POA, appellant
believed she was authorized to transfer appellee's interest in the Florida property and,
further, that she was also authorized to assign her authority to the parties' adult children.
Appellant's testimony regarding her understanding of the authority granted to her pursuant
to the 2012 POA was not disputed. Also not disputed was appellant's testimony that
appellee had directed her to sign the 2015 POA.
{¶ 26} Appellant also supports her argument that the record does not reflect
knowing wrongdoing by asserting that the sale of the Florida property was the only rational
decision that could have been made under the circumstances; therefore, the action taken
by appellant to sell the Florida property was not a dissipation of the parties' assets, but a
decision that avoided the parties incurring a deficiency judgment.
{¶ 27} As discussed, once appellee's parents vacated the Florida property, appellant
arranged with a property manager for tenants to occupy the property with the intention
that rent would pay the mortgage. While appellant was imprisoned, the mortgage went
unpaid and the Florida property was in foreclosure. The record reflects that upon being
No. 20AP-228 10
served with the complaint for foreclosure, appellant explored the options available to
maintain the Florida property, but was unable to refinance or continue to pay the mortgage.
At oral argument here, counsel for appellee stated that the sale of the Florida residence was
against appellee's wishes. Appellant testified only that appellee wanted to either provide
short payments to the bank or sell the Camaro. Appellant testified that it was her
understanding from her daughter that the bank would not accept short payments and the
Camaro was damaged. As to why she opted to sell the Florida property, appellant testified
that she believed a foreclosure action would have resulted in a deficit, and debt to the
parties.
{¶ 28} Finally, appellant contends that although she profited from the sale of the
Florida property, it was not at the expense of appellee. Appellee argues none of the
proceeds from the sale were given to him or used to benefit him.
{¶ 29} It is without question that appellant realized proceeds totaling $51,053.51
when the Florida property was sold. However, appellant's testimony regarding the use of
the proceeds, as corroborated by Tia, reflects evidence establishing that the expenses paid
with the proceeds of the sale may have been at least in part marital, rather than separate.
The record also reflects that the parties relied on their adult children to keep them
financially solvent and that appellee asked for a group effort between the parties and their
adult children to maintain the parties' property, living expenses, and bills during the
parties' incarceration. Appellant testified that the proceeds used for living expenses were
for appellant and the parties' children, stating that "[w]e operate together. It takes all of us
to get it done." (Tr. at 75.) The collective effort of the family related to finances was also
evidenced through Tia's testimony that for at least the last four years she has provided
financial support to the Hunting Creek household and for her youngest brother S.A. As of
the final hearing, appellee had been incarcerated since July 15, 2015 and had not financially
supported the family since.
{¶ 30} On the facts and circumstance of this case, we find the record does not reveal
competent, credible evidence that appellant engaged in knowing wrongdoing when she
signed the 2015 POA on appellee's behalf, and when she and the adult children sold the
Florida property. Therefore, on remand the trial court must vacate the distribution award
based on the finding of financial misconduct when the Florida property was sold and the
No. 20AP-228 11
2015 POA was signed. However, the question remains whether appellant committed
financial misconduct when she and the children used the proceeds from the sale of the
Florida property to pay the expenses outlined in exhibit 15A.5
{¶ 31} Accordingly, we sustain in part and decline to address in part appellant's first
assignment of error and remand for the trial court to make a determination in the first
instance regarding the nature of expenses paid for by the proceeds of the sale of the Florida
property.
B. Appellant's Second Assignment of Error
{¶ 32} Appellant's second assignment of error asserts the trial court abused its
discretion in awarding an unequal division of marital assets and debts. In support,
appellant contends the trial court did not equally divide the marital assets of the parties and
failed to provide written findings of fact that would support the court's division of the
parties' marital property as required by R.C. 3105.171(G).
{¶ 33} In a divorce proceeding, the domestic court has broad discretion to make
divisions of property. Smoyer v. Smoyer, 10th Dist. No. 18AP-365, 2019-Ohio-3461, ¶ 24,
citing Middendorf v. Middendorf, 82 Ohio St.3d 397, 401 (1998). A court should not
review discrete aspects of a property division out of the context of the entire award. Hamad
at ¶ 54, citing Baker v. Baker, 83 Ohio App.3d 700, 702 (9th Dist.1992). Rather, a court
should consider whether the trial court's disposition of marital property as a whole resulted
in a property division which was an abuse of discretion. Id.{¶ 34} We will uphold a trial court's valuation and division of property absent an
abuse of discretion. Hood v. Hood, 10th Dist. No. 09AP-764, 2010-Ohio-3618, ¶ 13, citing
Middendorf at 401. A trial court abuses its discretion when it acts in an unreasonable,
arbitrary, or unconscionable manner. Chawla at ¶ 12, citing Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). "Conversely, there is no abuse of discretion where there is some
5 As noted previously, appellant provided exhibit 15A listing all the expenses paid by the proceeds from the
sale of the Florida property. However, the trial court did not make findings as to whether each line item
expense was marital or separate. Nor did the trial court make a finding that all of the expenses were separate.
The court stated simply "[appellant] testified that the money received from the Florida property was used to
pay down some of her debt, make repairs to the marital residence, pay off the 2010 Camaro, and buy the 2008
Pontiac. * * * [Appellant] and the children profited from the sale of the property [and] [appellant] did not
divide the proceeds of the sale with [appellee]." (Decree at 3, 8.) On remand, the trial court shall consider
whether the line item expenses were marital or separate. If the court finds any of the line items were
appellant's separate expenses, pursuant to R.C. 3105.171, the trial court may consider the same in dividing
martial property and/or making a distributive award as it deems appropriate.
No. 20AP-228 12
competent, credible evidence supporting the trial court's decision." Smoyer at ¶ 24, citing
Chawla at ¶ 12, citing Ross v. Ross, 64 Ohio St.2d 203 (1980). When applying the abuse of
discretion standard, a reviewing court may not substitute its judgment for that of the trial
court. Id., citing Blakemore at 219.
{¶ 35} In divorce proceedings, the trial court must classify property as marital or
separate, determine the value of the property, and divide the marital and separate property
equitably between the spouses. R.C. 3105.171(B); Hood at ¶ 13, citing Roberts v. Roberts,
10th Dist. No. 08AP-27, 2008-Ohio-6121, ¶ 16. R.C. 3105.171(C)(1) provides that the trial
court must divide marital property equally unless an equal division would be inequitable;
in dividing marital property, the court must consider all relevant factors, including the ten
set forth in R.C. 3105.171(F). Those factors are:
(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;
(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.
No. 20AP-228 13
R.C. 3105.171(F).
{¶ 36} When ordering a division, disbursement or distributive award of property,
the trial court shall "make written findings of fact that support the determination that the
marital property has been equitably divided and shall specify the dates it used in
determining the meaning of 'during the marriage.' " R.C. 3105.171(G); Hightower v.
Hightower, 10th Dist. No. 02AP-37, 2002-Ohio-5488, ¶ 23. A trial court's failure to make
written findings of fact supporting its division of property constitutes an abuse of
discretion. Id. This court has held, however, that although a trial court is required to
consider all factors expressed in R.C. 3105.171(F), it is not required to provide an exhaustive
itemization of each factor, but, instead, clearly indicate that it considered the statutory
factors. Hadinger v. Hadinger, 10th Dist. No. 15AP-09, 2016-Ohio-821, ¶ 21. The
requirements of R.C. 3105.171(G) are satisfied when the reviewing court is able to ascertain
the requisite information from various portions of the record, including the trial court's
decision. Hamad at ¶ 79.
{¶ 37} In support of her second assignment of error, appellant argues the trial court
erred when it divided the parties' marital property unequally and failed to provide the
statutorily required findings of fact as to the court's orders with regard to the following:
(1) by ordering appellant to reimburse appellee $5,000 for the value of the Camaro
transferred to the parties' daughter Tia, (2) by awarding appellee the totality of the parties'
artwork without attributing the value of the property to the parties overall balance sheet,
(3) by ordering the parties to split the equity in the marital residence while requiring
appellant to be solely responsible for the payment of the note/mortgage from the date of
the final hearing until the date of the sale, and (4) by ordering appellant to be solely
responsible for the tax debts associated with CEK-Tipp Trucking from 2011-2014. See R.C.
3105.171(C)(1) and (G).
{¶ 38} Appellant first asserts the trial court abused its discretion by ordering
appellant to reimburse appellee $5,000 for the value of the Camaro transferred to Tia.
Appellant argues the trial court erred when it found the Camaro was transferred pursuant
to the 2015 POA and failed to provide written findings that would support the court's order
regarding the Camaro as required by R.C. 3105.171(G).
No. 20AP-228 14
{¶ 39} The trial court found appellee to be the owner of the Camaro and further that
the Camaro was transferred to one of the parties' children pursuant to the invalid power of
attorney, the 2015 POA. The trial court found that Tia testified she paid $9,000 for the
remaining loan balance on the Camaro and further that the Camaro was worth $10,000.
The court found that the Camaro was paid for with funds realized from the sale of the
Florida property. The court then ordered appellant to pay $5,000 to appellee for the value
of the Camaro.
{¶ 40} In support of her argument, appellant asserts the trial court's finding
contradicts her testimony. Appellant points to her testimony wherein she consistently
testified that she transferred the Camaro to Tia via the 2012 POA. Appellee points to no
evidence in the record to support the trial court's finding that it was transferred per the
2015 POA.
{¶ 41} We agree with appellant that the record does not reflect that the Camaro was
transferred pursuant to the 2015 POA. The record reflects, rather, it was transferred
pursuant to the 2012 POA. We also agree with appellant that Tia did not testify that she
paid the remainder of the loan on the Camaro, but rather appellant testified she believed
Tia paid the remainder of the loan with her own savings.
{¶ 42} Other than the trial court's reference to the 2015 POA, the trial court did not
provide findings that would support its determination regarding its order related to the
transfer of the Camaro. See R.C. 3105.171(G). Furthermore, the record does not reveal
competent, credible evidence to support the trial court's finding that the Camaro was
transferred via the 2015 POA. As such, the trial court abused its discretion when it found
the Camaro was transferred via the 2015 POA and by ordering appellant to pay $5,000 to
appellee on these grounds.
{¶ 43} On remand, the trial court must consider the factual discrepancy as found
herein when determining an equal, or equitable, division of the parties' marital property in
accord with R.C. 3105.171.
{¶ 44} Appellant next contends the trial court abused its discretion by awarding
appellee the totality of the parties' artwork without attributing the value of the property to
the parties' overall division of property, thus creating an unequal division of property
without the requisite findings.
No. 20AP-228 15
{¶ 45} As to the parties' artwork, the trial court found that appellant testified she
owned the fine art listed in her property affidavit and further that "these items were valued
at $15,000.00." (Decree at 3.) In the court's division of property, the trial court awarded
all of the artwork, 3 Peter Max paintings and 3 Christian Lassen paintings, to appellee, free
and clear of any claim of appellant. Appellee argues the art was gifted to him.
{¶ 46} We agree with appellee and note that the record reveals at several points
appellant testified that appellee could have the artwork. Therefore, we do not find the trial
court abused its discretion as appellant claims with regard to the artwork.
{¶ 47} Appellant further argues the trial court abused its discretion by ordering the
parties to equally divide the equity in the marital residence located on Hunting Creek Drive
("marital residence") upon sale of the property, while requiring appellant to be solely
responsible for the payment of the note/mortgage from the date of the final hearing until
the date of the sale. Appellant avers that the court's order requiring only appellant to pay
toward the debt associated with the marital residence after the termination of the parties'
marriage results in appellant paying with her separate property and appellee realizing
equity from appellant's sole payments. Instead, appellant contends the equity in the
marital residence should be calculated based on the existing debt as of the termination date
of the parties' marriage, May 7, 2019. Appellee argues there were eight people living at the
marital residence, appellant does not live there and the children paid the house expenses.
He further argues he has no way to maintain payments on the house since he is imprisoned.
{¶ 48} The trial court found the parties' marital residence was marital property and
subject to division. The decree found Exhibit 13A reflected a value of $242,000 for the
marital residence, however, the decree does not indicate that the court determined or
adopted a value of the marital residence.
{¶ 49} Pertinent to the issues before us, the trial court ordered appellant to list the
marital residence for sale within 30 days of the filing of the decree and further ordered that
proceeds, or liabilities, of the sale shall be split equally between the parties. The court also
ordered appellant to maintain all mortgage payments, taxes, insurance or other
indebtedness owed for the marital residence until the property was sold, including
maintaining all upkeep of the marital residence. Findings of fact to support the court's
division of the parties' marital residence were not provided.
No. 20AP-228 16
{¶ 50} This court has held that to comply with its duty under R.C. 3105.171(C)(1),
the trial court must value marital property, and in most cases, the court's failure to do so
amounts to an abuse of discretion. Raymond v. Raymond, 10th Dist. No. 11AP-363, 2011-
Ohio-6173, ¶ 22, citing Beagle v. Beagle, 10th Dist. No. 07AP-494, 2008-Ohio-764, ¶ 41.
Further, the trial court may not omit valuation altogether. Id. However, the failure to
establish a specific value for an asset or liability does not amount to an abuse of discretion
when the division of said asset or liability is not inequitable or prejudicial. Hadinger at
¶ 19, citing Saks v. Riga, 8th Dist. No. 101091, 2014-Ohio-4930, ¶ 21; Rittinger v. Rittinger,
10th Dist. No. 86AP-262 (Dec. 31, 1986).
{¶ 51} In allocating property between divorcing parties, a trial court must indicate
the basis for its award in sufficient detail to enable an appellate court to determine whether
the award is fair, equitable, and in accordance with the law. Hood at ¶ 20, citing Kaechele
v. Kaechele, 35 Ohio St.3d 93, 97 (1988).
{¶ 52} Here, the trial court abused its discretion by failing to determine the value of
the marital residence and failing to provide written findings to support its determination as
to the division of the martial residence. Without sufficient findings, we cannot give
meaningful review to the court's division of the marital residence in the first instance on
appeal. See Habtemariam v. Worku, 10th Dist. No. 19AP-47, 2020-Ohio-3044, ¶ 58.
{¶ 53} On remand, the trial court must determine the value of the marital residence
and then divide the marital property in accord with R.C. 3105.171(C)(1), and shall make
written findings pursuant to R.C. 3105.171(G).
{¶ 54} Finally, appellant asserts the trial court abused its discretion by ordering
appellant to be solely responsible for the tax debts associated with CEK-Tipp Trucking from
2011-2014. CEK-Tipp Trucking was a business registered in appellant's name.6
{¶ 55} The trial court found appellant owed a tax liability totaling $9,392 for the
years 2011-2014 for CEK-Tipp Trucking. The court determined this debt was incurred
during the marriage and was therefore marital; however, the court ordered appellant solely
responsible for the debt. The court found that appellee should not be liable because
6 The record reflects that in 1999 appellee began a freight company called "Always Dragon Freight," however,
the trucks were in appellant's name under a business called "CEK-Tipp." (Tr. at 16-18, 20-21.) Appellant
testified that she believed she was the sole shareholder of CEK-Tipp Trucking. The parties Rule 17 affidavits
do not list the parties' businesses.
No. 20AP-228 17
appellee was incarcerated in 2012 and consequently had no direct management of the
business and no direct share in the proceeds.
{¶ 56} Appellant argues that the trial court's finding is not supported by the record
as appellee was not incarcerated in 2012. In response to appellant's argument, appellee
notes that he was ordered to pay tax liabilities for his business for tax years 2011 and 2012.
Appellee further argues he was not present at trial and therefore could not disclose his tax
liability for this period. Appellee argues that under the circumstances, the division of the
tax liabilities is equitable.
{¶ 57} Appellee's arguments do not address the trial court's finding that appellee
was incarcerated in 2012. We agree with appellant that the record reflects that appellee
was incarcerated in July 2015, not in 2012, and there is no evidence to the contrary.
Therefore, there is no competent, credible evidence that would support the trial court's
basis for the division of the CEK-Tipp Trucking tax liabilities. As such, the trial court erred
when it based its division of the CEK-Tipp Trucking tax liability on its finding that appellee
was incarcerated in 2012.
{¶ 58} On remand, the trial court must consider the factual discrepancy as found
herein when determining an equal, or equitable, division of the parties' marital property
and provide written findings in support. R.C. 3105.171(C)(1) and (G).
{¶ 59} Accordingly, for the foregoing reasons, we sustain in part and overrule in part
appellant's second assignment of error.
IV. Conclusion
{¶ 60} We sustain in part and decline to address in part appellant's first assignment
of error. We overrule in part and sustain in part appellant's second assignment of error.
Therefore, we reverse in part the judgment of the Franklin County Court of Common Pleas,
Division of Domestic Relations, and remand this case to that court for further proceedings
consistent with law and this decision.
Judgment affirmed in part;
reversed in part, and cause remanded.
LUPER SCHUSTER and MENTEL, JJ., concur.