Yenni v. Yenni

[Cite as Yenni v. Yenni, 2022-Ohio-2867.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
AURELIJA YENNI, :
Plaintiff-Appellee, : No. 111058
v. :
GREGORY A. YENNI, :
Defendant-Appellant :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 18, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-18-373894
Appearances:
Joyce E. Barrett and James P. Reddy, Jr., for appellant.
Skirbunt & Skirbunt, L.L.C., James R. Skirbunt, and
Amanda M. Pipik-Leip, for appellee.
MARY EILEEN KILBANE, J.:
Appellant Gregory A. Yenni (“Husband”) appeals from the domestic
court’s order granting a divorce and legal custody of the couple’s minor child, V.Y.,
to appellee Aurelija Yenni (“Wife”). For the following reasons, we affirm.
Factual and Procedural History
Husband and Wife married on December 4, 2008. The couple had a
child, V.Y., on May 11, 2010. On October 10, 2018, Wife filed a complaint for divorce.
On that same date, the court issued a mutual restraining order to Husband and Wife
that enjoined the parties from participation in several delineated acts including, but
not limited to, (1) interference with the other spouse’s parenting time and (2)
withdrawal of funds from bank and investment accounts. Husband filed an answer,
pro se, on November 6, 2018. On January 11, 2019, Wife filed a financial disclosure
statement with an affidavit of property, income, and expenses.
On January 30, 2019, the trial court ordered the parties to attend
mediation. The court subsequently granted Wife’s motion to terminate mediation
services.
On March 13, 2019, pursuant to Wife’s motion, the court appointed a
guardian ad litem (“GAL”) and counsel on behalf of V.Y. (“V.Y.’s GAL and counsel”).
On April 10, 2019, the trial court docketed the parties’ agreed interim parenting
schedule. On April 11, 2019, the court referred the parties to the court’s Family
Evaluation Services (“FES”) for a brief focused evaluation that included facilitation
of a resolution and determination of whether one or both parties needed
psychological testing. On August 28, 2019, Wife secured Husband’s deposition
testimony.
On December 9, 2019, Husband, pro se, filed a motion for temporary
child support. Wife opposed this motion, and the court subsequently denied
Husband’s motion. On December 12, 2019, the court again referred this matter to
FES for an evaluation related to allocation of parental rights and responsibilities and
the facilitation of a resolution on parenting time.
On January 14, 2020, Wife filed her trial witness list that identified
Husband, Wife, V.Y.’s GAL and counsel, and the FES evaluator. Wife filed another
financial disclosure statement on January 15, 2020. On January 17, 2020, Husband,
pro se, filed a financial disclosure statement.
On January 28, 2020, and January 29, 2020, the magistrate began a
contested trial. On the second day of trial, Wife filed a motion to terminate
Husband’s parenting time. On January 31, 2020, the court granted Wife’s motion
to terminate parenting time thereby limiting Husband to supervised parenting time.
While a new trial date was set soon after the January 2020 trial dates, the parties
did not return for trial until a year later.
In the meantime, on February 7, 2020, Husband filed a motion, pro
se, to set aside the order for supervised visitation; the motion was denied. On March
13, 2020, April 27, 2020, and May 1, 2020, Wife filed motions to show cause
stemming from Husband’s alleged noncompliance with the court’s initial mutual
restraining order.
On July 8, 2020, counsel filed a notice of appearance on Husband’s
behalf. On August 7, 2020, the court docketed the parties’ signed stipulations that
stated the parties’ agreed division of real property, personal property, and credit
card debt. On November 6, 2020, Husband filed a motion to strike the August 7,
2020 stipulations on the basis that his attorney had no authority to approve them.
On December 22, 2020, the trial court denied Husband’s motion to strike.
Trial resumed on January 13, 2021. On February 16, 2021, both
parties, through counsel, and V.Y.’s GAL and counsel filed written closing
arguments. On April 16, 2021, the magistrate rendered a decision that included
findings of fact and conclusions of law. On April 30, 2021, Husband’s counsel filed
objections to the magistrate’s decision. On the same date, Husband filed two
affidavits, pro se. On May 3, 2021, Husband’s counsel filed a motion to withdraw as
counsel pursuant to Husband filing two pro se motions without his counsel’s
knowledge or consent. On May 7, 2021, the trial court granted the motion to
withdraw as counsel.
On May 14, 2021, Wife filed a brief in opposition to Husband’s
objections to the magistrate’s decision. The trial court overruled Husband’s
objections on July 20, 2021.
On July 30, 2021, Husband filed, pro se, a motion for new trial. On
the same date, Husband filed, pro se, a rejection of the court’s divorce judgment
entry. On September 2, 2021, the trial court denied Husband’s motion for a new
trial. On September 3, 2021, Husband filed, pro se, a request for findings of fact and
conclusions of law stemming from the court’s September 2, 2021 order that denied
his new trial motion. On September 20, 2021, the trial court denied Husband’s
request for findings of fact and overruled Husband’s rejection of the divorce
judgment entry.
On November 2, 2021, the trial court filed a judgment entry and
adopted the magistrate’s April 16, 2021 decision in its entirety.
On November 29, 2021, counsel entered an appearance on Husband’s
behalf and filed a timely notice of appeal that presented these ten assignments of
error:
First Assignment of Error: The trial court erred and abused its
discretion in finding appellee proved and corroborated grounds for
divorce.
Second Assignment of Error: The trial court erred and abused its
discretion in imputing income to appellant for purposes of calculating
the child support obligation.
Third Assignment of Error: The trial court erred and abused its
discretion in making the child support order retroactive to February 1,
2020.
Fourth Assignment of Error: The trial court erred and abused its
discretion in not conducting a hearing on the alleged stipulations of the
parties.
Fifth Assignment of Error: The trial court erred and abused its
discretion in designating appellee as residential parent and legal
custodian for the parties’ minor child and awarding appellant minimal
and supervised visitation.
Sixth Assignment of Error: The trial court erred and abused its
discretion in its valuation dates for the parties’ accounts.
Seventh Assignment of Error: The trial court erred and abused its
discretion in the division of the parties’ retirement assets.
Eighth Assignment of Error: The trial court erred and abused its
discretion in not making an award of spousal support to appellant.
Ninth Assignment of Error: The trial court erred and abused its
discretion in determining which party may claim the minor child for
tax purposes.
Tenth Assignment of Error: The trial court erred and abused its
discretion in denying appellant’s motion for new trial and request for
findings of fact and conclusions of law.
Legal Analysis
First Assignment of Error: The trial court erred and abused
its discretion in finding appellee proved and corroborated
grounds for divorce
In his first assignment of error, Husband argues that the trial court
abused its discretion when it found Wife proved and corroborated grounds for
divorce. Specifically, Husband argues that Wife’s complaint cited only
incompatibility as grounds for her divorce and Husband denied this allegation in his
answer. To pursue additional grounds for divorce under R.C. 3105.01(K), Husband
argues that Wife was obligated to file a motion to amend the complaint pursuant to
Civ.R. 15(B). Absent a motion to amend, Husband argues that the trial court erred
when it found Wife presented sufficient grounds for divorce. Further, Husband
argues that Wife did not provide evidence to corroborate the grounds for divorce as
required by Civ.R. 75(M).
In Ohio, under notice pleading, a plaintiff need not prove his case at
the pleading stage. DSS Servs., L.L.C. v. Eitel’s Towing, L.L.C., 10th Dist. Franklin
No. 18AP-567, 2019-Ohio-3158, ¶ 10. A plaintiff is simply required under Civ.R.
8(A)(1) to provide a short and plain statement of the claim demonstrating that the
claimant is entitled to relief and thereby placing the litigants on notice of the
intended claims and alleged causes of action. McBride v. Parker, 5th Dist. Richland
No. 11 CA 122, 2012-Ohio-2522, ¶ 27; Fancher v. Fancher, 8 Ohio App.3d 79, 83,
455 N.E.2d 1344 (1st Dist.1982) ( The purpose of Civ.R. 8(A) is “to simplify pleadings
to a ‘short and plain statement of the claim’ and to simplify statements of the relief
demanded * * * [so] that the adverse party will receive fair notice of the claim and
an opportunity to prepare his response thereto.”).
Here, Wife’s divorce complaint stated that “[Husband] has acted, or
has failed to act, in a manner which entitles [Wife] to a divorce under the provisions
of Section 3105.01 of the Ohio Revised Code, and that the parties are otherwise
incompatible.” We do not agree with Husband that Wife’s complaint alleged
grounds for divorce only on incompatibility. Wife’s complaint put Husband on
notice that she sought a divorce based upon any and all grounds listed under R.C.
3105.01, satisfying the rigors of Civ.R. 8.
Further, Civ.R. 75(M) required Wife to provide evidence in support of
her grounds for divorce:
(M) Testimony: Judgment for divorce, annulment, or legal
separation shall not be granted upon the testimony or admission of a
party not supported by other credible evidence. No admission shall be
received that the court has reason to believe was obtained by fraud,
connivance, coercion, or other improper means. The parties,
notwithstanding their marital relations, shall be competent to testify in
the proceeding to the same extent as other witnesses.
A trial court may grant a divorce after the party’s evidence of grounds for divorce is
corroborated by another witness or other independent evidence. Condit v. Condit,
190 Ohio App.3d 634, 2010-Ohio-5202, 943 N.E.2d 1041, ¶ 16 (1st Dist.), citing
Mathews v. Laci, 12th Dist. Clermont No. CA91-09-076, 1992 Ohio App. LEXIS
2278 (May 4, 1992). The
[c]orroborating evidence must pertain to material elements essential to
the proof of the ground for divorce set out in the complaint, but it is not
required for each and every material fact. The evidence “must merely
substantiate the testimony of a party, but need not support it in every
detail.” It may be oral, documentary, or both, and a court may consider
the evidence and admissions of the other party and find that they are
corroborative of the first party’s testimony.
Condit at ¶ 17.
A court of appeals reviews a trial court’s decision that there were
proper grounds for divorce under an abuse of discretion standard. O’Neal v. O’Neal,
8th Dist. Cuyahoga No. 110114, 2022-Ohio-372, ¶ 24. An abuse of discretion occurs
when a trial court’s decision is contrary to law, unreasonable, not supported by the
evidence, or grossly unsound. Cleveland v. Greear, 8th Dist. Cuyahoga No. 108190,
2020-Ohio-29, ¶ 19, citing State v. Taylor, 8th Dist. Cuyahoga No. 98107, 2012-
Ohio-5421, ¶ 22.
The trial court in the instant case granted Wife a divorce on three
grounds: the parties lived separate and apart for greater than one-year, gross
negligence, and extreme cruelty. Wife testified that she moved from the marital
residence into an apartment on April 26, 2019. Additionally, the GAL testified that
she visited Wife and V.Y. on July 1, 2019, in their apartment. Husband did not
introduce any evidence to demonstrate the parties had not lived separate and apart
for greater than one year nor did he object to the testimony proffered by Wife and
the GAL. The magistrate’s decision was docketed on April 16, 2021, and the trial
court granted the divorce decree on November 2, 2021. Thus, there was sufficient
evidence to demonstrate the parties lived separate and apart for greater than one
year.
As to gross negligence, this court has found that
[t]he term “gross neglect of duty” is not subject to precise definition and
its basis as a ground for divorce under R.C. 3105.01 is determined by
the circumstances of each case. [citations omitted] The trial court has a
large measure of discretion in determining the sufficiency of the
evidence in granting a divorce on the ground of gross neglect of duty.
Weinstein v. Weinstein [90 Ohio L. Abs. 199, 185 N.E.2d 56 (8th
Dist.1962; Buess v. Buess, 89 Ohio App. 37, 731 N.E.2d 646 (3d
Dist.1950).].
Rice v. Rice, 8th Dist. Cuyahoga No. 78682, 2001 Ohio App. LEXIS 4983, 15 (Nov.
8, 2001), quoting Patterson v. Patterson, 8th Dist. Cuyahoga No. 43707, 1982 Ohio
App. LEXIS 11728, 14 (July 22, 1982). Additionally, gross neglect of duty has been
described as the failure of one party to perform a marital duty “attended by
circumstances of indignity or aggravation.” Williams v. Williams, 8th Dist.
Cuyahoga No. 62267, 1993 Ohio App. LEXIS 3361, 38-39 (July 1, 1993), quoting
Kennedy v. Kennedy, 111 Ohio App. 432, 433, 165 N.E.2d 454 (12th Dist.1959).
Gross neglect of duty is determined on a case-by-case basis. Hunt v. Hunt, 63 Ohio
App.3d 178, 578 N.E.2d 498 (2d Dist.1989), citing Glimcher v. Glimcher, 29 Ohio
App.2d 55, 278 N.E.2d 37 (10th Dist.1971), paragraph one of the syllabus.
Similarly, extreme cruelty is not clearly defined, and this court has
relied on the following definition:
The term “extreme cruelty” as used in R.C. 3105.01 is not limited in
scope to acts of physical violence or the reasonable apprehension
thereof, but is sufficiently broad to encompass acts and conduct the
effect of which is calculated to permanently destroy the peace of mind
and happiness of one of the parties to the marriage and thereby render
the marital relationship intolerable. [Buess at 45.]
Huelsman v. Huelsman, 8th Dist. Cuyahoga No. 54684, 1988 Ohio App. LEXIS
4531, 21-22 (Nov. 17, 1988). “The determination of what facts constitute extreme
cruelty in a given case must be left to the broad, but sound, discretion of the trial
court and whether sufficient evidence has been presented to establish extreme
cruelty will depend upon all the circumstances of the particular case. 48 Ohio
Jurisprudence 3d (1983) 272, Family Law, Section 1126.” Huelsman at 22, quoting
Verplatse v. Verplatse, 17 Ohio App.3d 99, 100, 477 N.E.2d 648 (3d Dist.1984).
A review of the record shows that Husband’s behavior rose to the level
of gross neglect of duty and extreme cruelty.
Thus, the trial court did not abuse its discretion when it determined
that the evidence demonstrated the parties lived separate and apart for more than
one year and Husband’s behavior amounted to extreme cruelty and gross neglect of
duty. Husband’s first assignment of error is overruled.
Second Assignment of Error: The trial court erred and abused its
discretion in imputing income to appellant for purposes of calculating
the child support obligation
Husband argues that the trial court erred and abused its discretion
when it imputed income to him in the amount of $120,000 for purposes of
calculating his child support obligation. Specifically, Husband argues that the trial
court relied on Wife’s testimony rather than the applicable statutory factors.
“Pursuant to R.C. 3119.01(C)(9)(b) and 3119.01(C)(17), the trial court
is permitted to impute potential income to a parent who is voluntarily unemployed
or voluntarily underemployed for the purpose of determining the parent’s child
support obligation.” N.W. v. M.W., 8th Dist. Cuyahoga No. 107503, 2019-Ohio-
1775, ¶ 29. “Whether a parent is voluntarily underemployed and the amount of
potential income to be imputed to the parent for the calculation of child support are
matters the trial court determines on the particular facts and circumstances of each
case.” N.W. at ¶ 29, citing Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993),
syllabus. A trial court’s decision to impute income will be overturned only upon a
showing of an abuse of discretion. Rock at 112.
To determine the potential income for a parent who the court finds is
voluntarily unemployed or voluntarily underemployed, the court assesses the
following factors:
(i) The parent’s prior employment experience;
(ii) The parent’s education;
(iii) The parent’s physical and mental disabilities, if any;
(iv) The availability of employment in the geographic area in which the
parent resides;
(v) The prevailing wage and salary levels in the geographic area in
which the parent resides;
(vi) The parent’s special skills and training;
(vii) Whether there is evidence that the parent has the ability to earn
the imputed income;
(viii) The age and special needs of the child for whom child support is
being calculated under this section;
(ix) The parent’s increased earning capacity because of experience;
(x) The parent’s decreased earning capacity because of a felony
conviction;
(xi) Any other relevant factor.
R.C. 3119.01(C)(17)(a); Baxter v. Thomas, 8th Dist. Cuyahoga No. 101186, 2015-
Ohio-2148, ¶ 27, citing Justice v. Justice, 12th Dist. Warren No. CA2006-11-34,
2007-Ohio-5186, ¶ 9, citing R.C. 3119.01(C)(11)(a).1
The evidence shows that Husband was previously employed as an
industrial equipment service and manufacturing consultant earning $120,000
annually, plus expense reimbursement checks. Upon the sale of Husband’s former
employer in 2015, the acquiring company offered Husband a position that Husband
declined because he would not sign the required noncompete agreement. Since
2015, Husband’s income was significantly reduced, ranging from approximately
$15,000 to $21,000 annually.
The trial court determined Husband was voluntarily underemployed.
Husband was offered employment comparable to his previous position but declined
to accept that employment. Wife testified that Husband wanted to start his own
company to leave as a legacy to V.Y. A “parent’s subjective motivations for being
voluntarily unemployed or underemployed play no part in the determination
whether potential income is to be imputed to that parent in calculating his or her
support obligation.” Cimperman v. Cimperman, 8th Dist. Cuyahoga No. 80807,
2003-Ohio-869, ¶ 45, quoting Rock, 67 Ohio St.3d 108 at 111, 616 N.E.2d 218. See
also Chandler v. Chandler, 11th Dist. Trumbull No. 2016-T-0046, 2017-Ohio-710.
(Husband who could earn a higher annual salary but elected to defer income while
1 Former R.C. 3119.01(C)(11)(a) is now codified as R.C. 3119.01(C)(17)(a).
developing his own business was considered voluntarily underemployed.) Husband
experienced a significant reduction in salary when he declined the offered position
and became self-employed, and the trial court found him voluntarily
underemployed.
Further, the trial court considered the relevant R.C. 3119.01(C)(17)(a)
factors and found Husband’s potential income was $120,000 based upon Husband’s
previous salary earned before pursuing self-employment. The trial court stated
Husband did not present any evidence that he actively sought employment
consistent with his prior employment. The trial court also noted that Husband’s
“limited testimony on any specific subject * * * lacked any credibility.” The trial
court found that if Husband made reasonable attempts to secure employment
consistent with his prior work history, coupled with his education and experience,
he could earn at least $120,000.
Husband argues that the trial court was concerned about his mental
condition, presumably suggesting his imputed income should be less than his prior
salary because of a physical or mental disability allowed for under R.C.
3119.01(C)(17)(a)(iii). However, a review of the record shows the trial court’s
references to Husband’s mental health relate specifically to his suspicious nature
and unfounded allegations that impacted Husband’s ability to parent V.Y. rather
than relating to his ability to obtain and retain employment. Further, Husband
offered no testimony that demonstrated a physical or mental disability impacted his
earning capacity.
Considering the testimony and findings outlined above, the trial
court’s finding Husband voluntarily underemployed and imputing income in the
amount of $120,000 was not an abuse of discretion. The record is silent on several
R.C. 3119.01(C)(17)(a) factors; however, the statute does not require evidence be
presented as to each factor before the court may impute income. Chapman v.
Chapman, 10th Dist. Franklin No. 05AP-1238, 2007-Ohio-1414, ¶ 12. In fact, “‘the
trial court has no obligation to investigate and develop evidence that the parties have
failed to present.’” In re J.M.G., 8th Dist. Cuyahoga No. 98990, 2013-Ohio-2693, ¶
26, quoting Strimbu v. Strimbu, 11th Dist. Trumbull No. 2010-T-0104, 2011-Ohio-
3629, ¶ 17, quoting Maguire v. Maguire, 9th Dist. Summit No. 23581, 2007-Ohio-
4531, ¶ 14. “Where the parties failed to present evidence in regard to each of the
[R.C. 3119.01(C)(17)] factors * * * , it was reasonable for the trial court to consider
such factors immaterial to a determination of the issues.” August v. August, 3d Dist.
Hancock No. 5-13-26, 2014-Ohio-3986, ¶ 43, quoting Keller v. Keller, 9th Dist.
Wayne No. 04CA0084, 2005-Ohio-3302, ¶ 17; see also Wilburn v. Wilburn, 169
Ohio App.3d 415, 2006-Ohio-5820, 863 N.E.2d 204, ¶ 38 (9th Dist.), citing Keller.
Recognizing Husband’s prior employment and earning capacity, his
decision to forego employment due to a noncompete agreement, the court’s
interpretation of Husband’s veracity, and the absence of any objective evidence that
weighs against the trial court’s decision, we cannot say that the trial court abused its
discretion when it imputed an income of $120,000 to Husband. Therefore,
Husband’s second assignment of error is overruled.
Third, Fourth, Fifth, and Seventh Assignments of Error
For ease of discussion, we will address Husband’s third, fourth, fifth,
and seventh assignments of error together.
In his third assignment of error, Husband argues that the trial court
erred when it granted Wife child support retroactive to February 1, 2020, when Wife
did not file a motion for child support during the pendency of their divorce.
In his fourth assignment of error, Husband contends that the trial
court erroneously failed to hold an evidentiary hearing on his motion to strike the
parties’ stipulations.
In his fifth assignment of error, Husband contends that the trial court
erred and abused its discretion when it relied on an outdated parenting plan and did
not defer to the GAL’s testimony when it designated Wife as residential parent and
legal custodian of V.Y. and awarded minimal supervised visitation to Husband.
In his seventh assignment of error, Husband argues that the trial
court erred and abused its discretion when it divided the parties’ retirement assets
and granted Wife a greater share of those assets.
App.R. 16(A)(7) requires an appellant to include within his or her
brief “[a]n argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on
which appellant relies.” According to App.R. 12(A)(2), an appellate court may
disregard an assignment of error if an appellant fails to cite any legal authority to
support his argument. Thornhill v. Thornhill, 8th Dist. Cuyahoga No. 92913, 2009-
Ohio-5569, ¶ 11 (court declined to address assignments of error when appellant
failed to cite any supporting case law or statute); Brown v. Brown, 2014-Ohio-2402,
14 N.E.3d 404, ¶ 36, 50 (8th Dist.)(court did not assess merits of assignments of
error where appellant cited no legal authority); State v. Banks, 8th Dist. Cuyahoga
No. 108166, 2020-Ohio-3029, ¶ 18 (a court may disregard an assignment of error
that is not supported with a legal citation.)
“Appellate courts are not advocates.” Taylor-Stephens v. Rite Aid of
Ohio, 8th Dist. Cuyahoga No. 106324, 2018-Ohio-4714, ¶ 121. The appellant, rather
than the appellate court, bears the burden to construct the necessary legal
arguments that support the designated assignments of error. Doe v. Cuyahoga Cty.
Community College, 8th Dist. Cuyahoga No. 110590, 2022-Ohio-527, ¶ 26, citing
Taylor-Stephens. In his third, fourth, fifth, and seventh assignments of error,
Husband fails to cite any legal authority in support of his arguments. We decline to
review these assignments of error pursuant to the appellate rules and, therefore,
these assignments of error are overruled.
Sixth Assignment of Error: The trial court erred and abused its
discretion in its valuation dates for the parties’ accounts
In his sixth assignment of error, Husband argues that the trial court
erred and abused its discretion when it valued the parties’ bank and investment
accounts. Specifically, Husband argues that the valuations used by the court were
submitted exclusively by Wife and did not allow for equal division of the accounts.
Husband argues that the trial court should have valued the bank and investment
accounts as of October 10, 2018, the date the court issued its mutual restraining
order.
On January 11, 2019, and January 15, 2020, Wife filed financial
disclosure forms that listed bank and investment accounts held both individually by
herself and jointly with Husband. On January 17, 2020, Husband filed a financial
disclosure form that also identified the parties’ individual and joint accounts. The
amounts listed in the financial disclosure forms stated present fair market values.
The trial court’s decision filed on November 2, 2021 (“November 2,
2021 judgment entry”) specified the distribution of the marital assets including bank
and investment accounts, real property, and automobiles. For purposes of this
review, we are only concerned with the bank and investment accounts. The
November 2, 2021 judgment entry identified the parties’ bank and investment
accounts, their valuation dates, and the balances for each account. The judgment
entry referenced exhibit No. 2 that was attached and identified the bank and
investment accounts as well as to whom the accounts were titled, the valuation dates
of the accounts, and the court’s division of those accounts between Husband and
Wife.
The November 2, 2021 judgment entry and exhibit No. 2 incorporated
information from both parties’ financial disclosure forms: the bank account
balances reflected the amounts listed on Wife’s financial disclosure forms, the IRA
account balances reflected the amounts listed on Husband’s financial disclosure
form, and the 401(K) balance was valued the same by Husband and Wife. Only Wife
listed the certificate of deposit on her financial disclosure form. Except for the
certificate of deposit account that was valued as of December 2018, the remaining
bank and investment account balances were valued in December 2019 or January
2020. The remaining marital assets — real estate and automobiles — that were
listed in the November 2, 2021 judgment entry and exhibit No. 2 were also valued
as of January 2020.
“‘The determination as to when to apply a valuation date other than
the actual date of divorce is within the discretion of the trial court and cannot be
disturbed on appeal absent a demonstration of an abuse of discretion.’” Abernethy
v. Abernethy, 8th Dist. Cuyahoga No. 80406, 2002-Ohio-4193, ¶ 19, quoting Gullia
v. Gullia, 93 Ohio App.3d 653, 666, 639 N.E.2d 822 (8th Dist.1994).
Husband argues that the court should have applied October 10, 2018
as the valuation date rather than December 2019 or January 2020. Husband argues
that on October 10, 2018, Wife filed for divorce and the court issued its mutual
restraining order that enjoined the parties from withdrawing funds from the
accounts. To remedy any inequity caused by either party withdrawing funds from
an account following issuance of the restraining order, Husband contends that the
trial court should have used the date the mutual restraining order was issued for the
valuation date.
The trial court valued all the bank and investment accounts, except
the certificate of deposit, as of December 2019 or January 2020. The contested trial
began in January 2020. While the trial was continued until January 2021, the
parties did not introduce any additional evidence pertaining to marital assets
following the 2020 trial date. Further, the trial court used valuations proposed by
both Husband and Wife. Husband neither objected to Wife’s proposed valuations
nor presented alternative valuations.
Additionally, the trial court found “that no evidence was presented to
establish that an equal division of marital property would be equitable.” A trial court
has broad discretion to determine equitable property division and “[t]he mere fact
that a property division is unequal, does not, standing alone, amount to an abuse of
discretion.” Martin v. Martin, 18 Ohio St.3d 292, 294, 480 N.E.2d 1112 (1985),
quoting Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981), paragraph
two of the syllabus. Here, the trial court specifically stated that while the property
division was not equal it was equitable because of “the length of time the parties have
been separated; the fact that [Wife] has had 100% of the parenting time with the
parties’ minor child, and has borne 100% of the child’s expenses since January 31,
2020; and because [Husband] has been the cause of significant delay.”
We find the trial court’s division of the parties’ bank and investment
accounts and valuation of those accounts on a date other than October 2018, did not
amount to an abuse of discretion. Husband’s sixth assignment of error is overruled.
Eighth Assignment of Error: The trial court erred and abused its
discretion in not making an award of spousal support to appellant
In his eighth assignment of error, Husband contends that the trial
court erred and abused its discretion when it found that Husband was not entitled
to spousal support.
“Except 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 * * * unless the
party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).”
Civ.R. 53(D)(3)(b)(iv); Citifinancial Mtge. Co. v. Allen, 8th Dist. Cuyahoga No.
90979, 2008-Ohio-5998, ¶ 5.
A review of the record shows that Husband’s argument about spousal
support was not raised in Husband’s objections to the magistrate’s decision.
Husband also failed to invoke the plain-error doctrine on his appeal of this issue.
Where the appellant fails to object to a trial court’s finding or conclusion under
Civ.R. 53(D)(3)(b) and fails to make a showing to the appeals court that plain error
occurred, the reviewing court need not address the issue. Kobal v. Edward Jones
Secs., 8th Dist. Cuyahoga No. 109753, 2021-Ohio-1088, ¶ 41; State v. Quarterman,
140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 17-20 (appellate court need
not consider plain error where appellant fails to timely raise plain-error claim).
Accordingly, we overrule Husband’s eighth assignment of error.
Ninth Assignment of Error: The trial court erred and abused its
discretion in determining which party may claim the minor child for tax
purposes
Husband argues that the trial court erred and abused its discretion
when it found Wife entitled to claim V.Y. for all federal income tax purposes.
A trial court’s allocation of the tax dependency exemption is reviewed
under an abuse of discretion standard. Madden v. Madden, 8th Dist. Cuyahoga No.
71302, 1997 Ohio App. LEXIS 4809, 8-9 (Oct. 30, 1997). The decision is premised
on the best interest of the child. Branden v. Branden, 8th Dist. Cuyahoga No. 91453,
2009-Ohio-866, ¶ 36, quoting Keating v. Keating, 8th Dist. Cuyahoga No. 90611,
2008-Ohio-5345, ¶ 90, quoting Foster v. Foster, 6th Dist. Sandusky No. S-03-037,
2004-Ohio-3905, ¶ 22.
According to R.C. 3119.82, where the parties do not agree on which
parent should claim their child as a dependent — as was the case between Husband
and Wife — the court may permit the parent who is not the residential parent and
legal custodian to claim the child as a dependent for federal income tax purposes
only if the court determines that this furthers the best interest of the child. Pursuant
to R.C. 3119.82, the trial court must consider several factors to determine the best
interest of the child:
In cases in which the parties do not agree which parent may claim the
children as dependents, the court shall consider, in making its
determination, any net tax savings, the relative financial circumstances
and needs of the parents and children, the amount of time the children
spend with each parent, the eligibility of either or both parents for the
federal earned income tax credit or other state or federal tax credit, and
any other relevant factor concerning the best interest of the children.
R.C. 3119.82; Brown, 2014-Ohio-2402, 14 N.E.3d 404, at ¶ 59. A trial court need
not state its basis for allocating the tax exemption, but the record needs to include
the financial data referenced in the statute. Brown at ¶ 36, quoting Branden at ¶ 36,
quoting Ankney v. Bonos, 9th Dist. Summit No. 23178, 2006-Ohio-6009, ¶ 40.
The court found pursuant to R.C. 3119.82 that it was in the best
interest of V.Y. to allow Mother to claim the child for all tax purposes. Husband is
underemployed and Wife, as residential parent, provides most of the financial
support to V.Y. and spends most of the time with the child. The record includes
financial documentation to support the court’s decision. Husband does not argue
the record is devoid of the relevant financial data, but contends the trial court did
not make any findings on this issue. Yet, because the trial court was not required to
make any such findings of fact, this argument lacks merit. Brown at ¶ 60.
Husband fails to demonstrate that the trial court abused its discretion
when it allocated the tax exemption to Wife. Thus, Husband’s ninth assignment of
error is overruled.
Tenth Assignment of Error: The trial court erred and abused its
discretion in denying appellant’s motion for new trial and request for
findings of fact and conclusions of law
Husband argues that the trial court erred and abused its discretion
when it denied his motion for new trial and request for findings of fact and
conclusions of law. Specifically, Husband argues that the trial court erred when it
found his eight-page, single-spaced, pro se motion for new trial “failed to establish
sufficient grounds for a new trial pursuant to Civ.R. 59.” Husband also argues that
the court should have provided a detailed basis for its denial of the motion for a new
trial pursuant to Husband’s filing a pro se request for findings of fact and
conclusions of law.
The standard of review we apply to a trial court’s ruling on a Civ.R. 59
motion for new trial depends upon the grounds for the motion. Robinson v. Turoczy
Bonding Co., 8th Dist. Cuyahoga No. 103787, 2016-Ohio-7397, ¶ 23.
A motion for new trial brought under Civ.R. 59(A)(1), (2), (3), (4), (5),
(6), or (8) is reviewed for an abuse of discretion. Gateway Consultants
Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist. Cuyahoga No.
104014, 2017-Ohio-1443, ¶ 12, 13; Johnson v. Johnson, 5th Dist. Stark
No. 2015CA00076, 2015-Ohio-4748, ¶ 16-17; GMS Mgt. Co. v. Coulter,
11th Dist. Lake No. 2005-L-071, 2006-Ohio-1263, ¶ 20-21. A motion
for new trial brought under Civ.R. 59(A)(7) or (9), is reviewed de novo.
Gateway Consultants Group at ¶ 12, 22.
Moore v. Moore, 6th Dist. Erie No. E-17-011, 2018-Ohio-1545, ¶ 14.
Upon a review of the record, we find that the trial court did not abuse
its discretion when it denied Husband’s motion for new trial pursuant to Civ.R.
59(A)(1), (3), (6), and (8) and the court did not err when it denied Husband’s motion
for new trial under Civ.R. 59(A)(7).
In addition to filing his motion for new trial, Husband filed a request
for findings of fact and conclusions of law relating to the trial court’s denial of his
motion for new trial. Civ.R. 59(A) reads, in pertinent part: “When a new trial is
granted, the court shall specify in writing the grounds upon which such new trial is
granted.” While Civ.R. 59(A) requires a trial court to specify in writing the grounds
upon which a new trial was granted, there is no corresponding requirement that the
trial court issue findings of fact and conclusions of law upon the denial of a motion
for new trial. State v. Girts, 121 Ohio App.3d 539, 565, 700 N.E.2d 395 (8th
Dist.1997); see Schneider v. First Natl. Supermarkets, 8th Dist. Cuyahoga No.
70226, 1996 Ohio App. LEXIS 5450, 8 (Dec. 5, 1996) (no mandatory requirement
for trial court to specify in writing the grounds for its denial of a motion for new
trial). Thus, the trial court had no duty to provide findings of fact and conclusions
of law relating to its denial of the motion for new trial.
Husband’s tenth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, domestic relations division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___________________________________
MARY EILEEN KILBANE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR