Hornbeck v. Hornbeck

[Cite as Hornbeck v. Hornbeck, 2019-Ohio-2035.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
JOHN DAVID HORNBECK :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-75
:
v. : Trial Court Case No. 2016-DR-0887
:
REBECCA SUE HORNBECK : (Appeal from Common Pleas Court-
: Domestic Relations Division)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 24th day of May, 2019.
...........
JAMES E. HEATH, Atty. Reg. No. 0003757, 20 South Limestone Street, Suite 120,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
LINDA JOANNE CUSHMAN, Atty. Reg. No. 0043543, 8 North Limestone Street, Suite E,
Springfield, Ohio 45502
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} This matter is before the court on the appeal of Rebecca Hornbeck (nka
Compton) from a judgment and decree of divorce entered by the trial court.1 In support
of her appeal, Rebecca asserts fourteen assignments of error challenging various aspects
of the trial court’s decision, including the court’s refusal to consider a date prior to the
parties’ ceremonial marriage for purposes of making an equitable division of property.
Rebecca also contends that the trial court abused its discretion in finding that she was
voluntarily underemployed and that her husband, John, was not voluntarily
underemployed. In addition, Rebecca contends that the trial court abused its discretion
in these other ways: failing to find that she had health issues that prevented her from
working; failing to equitably divide the equity in the marital real estate; failing to give her
distributive awards under R.C. 3105.171(E); failing to award spousal support; failing to
require John to pay all or part of her expert fees; failing to require that the parties amend
their 2016 and 2017 tax returns to file jointly; and failing to make any finding on her motion
for contempt. Finally, Rebecca alleges other ways in which the trial court erred or
abused its discretion with respect to discovery, assessing credibility, and factual findings.
{¶ 2} For the reasons discussed below, the judgment will be reversed in part and
affirmed in part, and will be remanded to the trial court for further proceedings consistent
with this opinion.
I. Facts and Course of Proceedings
{¶ 3} John and Rebecca began living together in May 2000 and subsequently
married on April 12, 2003. They did not have any children together, but from around
1 For clarity, we will refer to the parties by their first names.
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2001 to 2008 (first grade until the beginning of eighth grade), John’s daughter lived with
them.
{¶ 4} Rebecca had graduated from high school in 1981 and had worked several
factory jobs between 1984 and December 2001, when Hobart laid her off. At that time,
Rebecca became a stay-at-home mother for John’s daughter. At John’s choice,
Rebecca did not work outside the home while she was mothering his daughter; the parties
also planned to have children and did not want them cared for by babysitters. Ultimately,
however, they did not have any children together.
{¶ 5} In 2008, the daughter left the parties’ home. Rebecca did not return to work
for two years, but then began babysitting for children in the marital home in 2010.
Between that time and September 2016, Rebecca baby-sat for children five days a week,
earning about $150 to $160 per week, which she contributed to the family income.
However, in July 2016, John told her that he wanted a divorce and wanted her out of the
house. As a result, Rebecca informed her clients that she would not be able to babysit
in the marital home. She lost clients, but still babysat for one family in their home, about
two days per week.
{¶ 6} John had a college degree in business and worked for Panasonic for 15
years as a production scheduler. After being laid off at Panasonic, he worked at ABX for
a year and a half and left for a better job at U.S. Truck, where he worked from 2004
through 2011. While at U.S. Truck, John was a clerk, then became a maintenance
supervisor, and finally was a safety supervisor from 2008 to 2011, when he lost his job
due to downsizing. He subsequently began employment with Bulk Transit as safety
director in late March 2011.
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{¶ 7} In February 2016, John resigned in lieu of being fired from his employment
as a safety director for Bulk Transit, where he had worked for nearly five years. At the
time, John was earning about $52,000 per year. A year before John resigned, he was
not happy and had divorce in mind. According to John, he was let go for non-complying,
i.e., not giving drug tests to his employees. To comply and give those tests, he would
only have had to notify the individuals that they would have to take the tests. John had
successfully done this during the four preceding years. See September 11, 2017
Transcript (“Tr. 2”), p. 13.2 At the time he was unhappy with his marriage, he decided
not to give the notice to his employees anymore. Id. at pp. 13-14.
{¶ 8} John was subsequently reemployed on May 1, 2017, at Rollins Moving and
Storage as a laborer, making $11.00 an hour. July 11, 2017 Transcript (“Tr. 1”), pp. 30-
32. He worked there until the beginning of April 2018, when he took a job at a local
hospital, earning $10.54 per hour, for a 40-hour week. The income from the latter job
amounted to $21,923 per year, or about $30,000 less annually than he earned at Bulk
Transit.
{¶ 9} John filed for divorce in November 2016, and Rebecca filed an answer and
counterclaim for divorce. In late January 2017, an agreed temporary order was filed,
stating that neither party would have exclusive use of the marital residence and that the
parties were to “continue to pay the martial debts for the residence and food as has been
their custom.” Doc. #10, p. 1. The parties, thus, continued to live in the same household
until the final decree was filed in late May 2018.
{¶ 10} In the meantime, the trial court held evidentiary hearings on seven days
2 There were seven days of hearings in this case, resulting in seven transcripts.
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from July 11, 2017 to April 17, 2018. The court then filed a judgment entry and decree
of divorce on May 24, 2018, granting the divorce, disposing of the property, and
addressing other issues. This appeal followed.
II. Applicable Date Under R.C. 3105.171(A)(2)
{¶ 11} Rebecca’s First Assignment of Error states that:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Failed to Find That the Date
That the Parties Began Living Together [W]as the Commencement Date of
the Marriage for 3105.171 Purposes.
{¶ 12} During the proceedings, Rebecca filed a motion asking the trial court to
consider May 2000 as the commencement date of the marriage for purposes of dividing
the marital property under R.C. 3105.171. Using the earlier date was important to
Rebecca because John purchased two properties – the martial residence and a rental
property – shortly before the ceremonial date of the marriage, which was April 12, 2003.
However, prior to that time (since May 2000), the parties were living together as a family
unit. The trial court rejected Rebecca’s argument and decided to use the ceremonial
marriage date as the start of the marriage. Although disagreement exists among
appellate districts on this point, the trial court concluded: (1) that we had not addressed
the issue; and (2) that the approach of the Ninth District Court of Appeals in Ward v. Ward,
9th Dist. Summit No. 26372, 2012-Ohio-5658, was “more reflective of legislative intent.”
Doc. #25, p. 3.
{¶ 13} In divorce actions, trial courts have broad discretion in deciding an equitable
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division of property. Berish v. Berish, 69 Ohio St. 2d 318, 319, 432 N.E.2d 183 (1982).
We may modify or reverse the court’s decision only for abuse of discretion. Id.
However, where interpretation of statutes is involved, our review is de novo, and we give
no deference to a trial court’s conclusions of law. Buckingham v. Buckingham, 2d Dist.
Darke No. 1626, 2004-Ohio-1942, ¶ 11, citing Miamisburg v. Wood, 137 Ohio App. 3d
623, 625, 739 N.E.2d 410 (2d Dist.2000).
{¶ 14} R.C. 3105.171(A)(2) provides that, as used in that statute, “[d]uring the
marriage” means whichever of the following is applicable:
(a) Except as provided in division (A)(2)(b) of this section, the period of time
from the date of the marriage through the date of the final hearing in an
action for divorce or in an action for legal separation;
(b) If the court determines that the use of either or both of the dates specified
in division (A)(2)(a) of this section would be inequitable, the court may select
dates that it considers equitable in determining marital property. If the court
selects dates that it considers equitable in determining marital property,
“during the marriage” means the period of time between those dates
selected and specified by the court.
{¶ 15} In Ward, the trial court used a date prior to marriage for dividing assets. On
appeal, the Ninth District Court of Appeals held that “[a] determination that a marriage
commenced prior to the ceremonial date of the marriage is improper and would effectively
resurrect common law marriages after the legislature abolished them in 1991.” Ward,
9th Dist. Summit No. 26372, 2012-Ohio-5658, at ¶ 27. In contrast, the Eighth District
Court of Appeals has long “upheld the application of R.C. 3105.171(A)(2) to extend the
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parties' marriage to include their period of cohabitation prior to marriage.” Al-Mubarak v.
Chraibi, 8th Dist. Cuyahoga No. 101392, 2015-Ohio-1018, ¶ 21, citing Bradley v. Bradley,
8th Dist. Cuyahoga No. 78400, 2001 WL 755847 (July 5, 2001).
{¶ 16} Contrary to the trial court’s conclusion, we have considered the issue of
whether property acquired prior to the parties’ ceremonial marriage may be,
“nevertheless, acquired ‘during the marriage,’ and thus subject to an equitable division”
pursuant to R.C. 3105.171(A)(2)(b). Drumm v. Drumm, 2d Dist. Montgomery No. 16631,
1999 WL 198120, *3 (March 26, 1999). In Drumm, the trial court used a date before the
parties’ ceremonial marriage to divide property that the husband had acquired prior to the
date of marriage. In considering whether this was an abuse of discretion, we commented
that:
R.C. 3105.171(A)(2)(b) establishes no standards or other criteria to
guide the court in determining whether and when use of the dates specified
in division (A)(2)(a) would be inequitable. The section appears to reiterate
the general grant of “full equitable powers and jurisdiction appropriate to the
determination of all domestic relations matters” conferred on the courts of
common pleas by R.C. 3105.011. The effect of that grant has been held
“to permit the court a free and full exercise of its general equity powers to
adjust property rights between opposing spouses as it determines will serve
the ends of justice.” DeMilo v. Watson, Exr. (1957), 166 Ohio St. 433, 436,
143 N.E.2d 707. Nevertheless, it has also been held that “there must be a
statutory basis upon which to exercise those powers before they may be
put into play.” Haynie v. Haynie (1959), 169 Ohio St. 467, 469, 159 N.E.2d
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765.
To construe and/or apply R.C. 3103.171(A)(2)(b) to permit a
domestic relations court to select dates which determine the “duration of the
marriage” for purposes of property division absent some rational criteria for
that determination and some evidence which satisfies those criteria is
arbitrary, and arbitrary action constitutes a denial of due process. Stanton
v. State Tax Com (1926), 114 Ohio St. 658, 151 N.E. 760. To thus deprive
persons of their property without due process is in violation of the Fifth
Amendment to the Constitution of the United States and Article I, Section
16 of the Constitution of Ohio. Clifton Hills Realty Co. v. Cincinnati (1938),
60 Ohio App. 443, 21 N.E.2d 993.
Drumm, 2d Dist. Montgomery No. 16631, 1999 WL 198120, at *3-4.
{¶ 17} Notably, however, we found such a basis. In this regard, we commented
that:
Some meaning concerning the equities involved in R.C.
3105.171(A)(2)(b) and guidance in its application may be gleaned from the
provision of R.C. 3105.011, which permits the court to exercise full equitable
powers “appropriate to the determination” of domestic relations matters. In
this context, that would permit a domestic relations court to employ R.C.
3105.171(A)(2)(b) to award one spouse an interest in the property of the
other on some basis different from and in addition to the interests that are
created by the marriage. Those equities do not replicate the
considerations involved in a state of marriage that exists at common law;
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that is, an assumed matrimonial state that involves shared duties and
responsibilities. Rather, R.C. 3105.171(A)(2)(b) reasonably requires a
finding that one spouse acquired a substantial interest in the property of the
other even before the marriage commenced. That finding must be based
on some evidence of an investment or contribution by one spouse creating
that form of interest in the property of the other.
(Emphasis added.) Id. at *4.
{¶ 18} After considering the matter, we reversed the trial court’s decision to award
the wife an equitable share of the property from the date that the parties began living
together 11 years prior to their marriage. Specifically, we noted the lack of evidence that
the wife had made “any substantial contribution” to the husband’s separate property prior
to their ceremonial marriage. Id. While she had stayed over at the house before the
ceremonial marriage, “she made no contributions toward its purchase or improvement.”
Id. She also did not contribute to the husband’s other assets, like boats, investment
accounts, or his family business. Indeed, we noted that the only date appearing to
coincide with the earlier date used for the “duration of the marriage” was that the wife had
been given a bowling team membership card the following day. Id. In a later case,
and consistent with Drumm, we did allow a date prior to the ceremonial marriage to be
used. See Richards v. Richards, 2d Dist. Montgomery No. 18660, 2001 WL 1346043,
*4 (Nov. 2, 2001).
{¶ 19} As noted, the trial court rejected any consideration of this matter, which was
an error of law. We recognize that there is a difference of opinion on this point.
However, a majority of appellate districts have ruled on the issue, and the Ninth District’s
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decision in Ward is in a distinct minority. Compare, e.g., Ward, 9th Dist. Summit No.
26372, 2012-Ohio-5658 (refusing to use date prior to ceremonial marriage); D'Hue v.
D'Hue, 8th Dist. Cuyahoga No. 81017, 2002-Ohio-5857, ¶ 90 (allowing date prior to
marriage to be used where parties started functioning as husband and wife, both socially
and economically, their finances were interdependent, and wife was financially dependent
on husband); Flick v. Flick, 12th Dist. Butler No. CA2001-05-111, 2001-Ohio-8673, *2
(trial court did not abuse its discretion in concluding start of marriage was before
ceremonial marriage; “the parties lived together continuously since their engagement in
June 1994. After this time, they pooled their financial resources to maintain a common
household, even purchasing property together in anticipation of their retirement”); Gibson
v. Gibson, 3d Dist. Marion No. 9-07-06, 2007-Ohio-6965, ¶ 22, fn.2 (noting that courts
may choose a date prior to ceremonial marriage, but declining to do so in that case since
the issue was not raised at trial); Davis v. Davis, 11th Dist. Geauga No. 2011-G-3018,
2013-Ohio-211, ¶ 89-90 (citing D’Hue, and concluding that parties’ de facto relationship
began four years before marriage for purposes of spousal support award); Staskey v.
Staskey, 7th Dist. Jefferson No. 93-J-5, 1995 WL 152988, *4 (Apr. 4, 1995) (no abuse of
discretion in using date well before ceremonial marriage as marital acquisition date);
Colello v. Colello, 6th Dist. Lucas No. L-95-322, 1996 WL 446842, *4 (Aug. 6, 1996)
(because no evidence of intent to have common law marriage existed, trial court abused
discretion in using date two years before ceremonial marriage); Dach v. Homewood, 10th
Dist. Franklin No. 14AP-502, 2015-Ohio-4191, ¶ 17 (trial court can use date prior to
ceremonial marriage; under facts of the case, court did not abuse its discretion by
deciding ceremonial date was not inequitable).
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{¶ 20} In its decision, the trial court did not specify the legislative intent to which it
referred (other than mentioning abolishment of common law marriage), nor does Ward
discuss “legislative intent.” As noted, in Ward, the court did say that “[a] determination
that a marriage commenced prior to the ceremonial date of the marriage is improper and
would effectively resurrect common law marriages after the legislature abolished them in
1991.” Ward at ¶ 27, citing R.C. 3105.12(B). The statute abolishing common law
marriages was adopted in June 1991 and was effective in October 1991. See H.B. No.
32, 1991 Ohio Laws File 41.
{¶ 21} However, before H.B. No. 32 was passed, R.C. 3105.171 was amended in
August 1990. At that time, the current wording in R.C. 3105.171(A)(2)(b) concerning
“during the marriage” was added. See H. B. No. 514, 1990 Ohio Laws File 276. The
amended statute was effective in January 1991, and the pertinent language thereafter
has never changed, despite later amendments to R.C. 3105.171 in 1992, 2000, 2008,
2010, and 2015.
{¶ 22} “In construing a statute, a court's paramount concern is the legislative
intent.” State ex rel. Herman v. Klopfleisch, 72 Ohio St. 3d 581, 584, 651 N.E.2d 995
(1995). To determine “legislative intent, the court first looks to the language in the statute
and the purpose to be accomplished.” State v. S.R., 63 Ohio St. 3d 590, 594-95, 589
N.E.2d 1319 (1992). “If the meaning of a statute is unambiguous and definite, then it
must be applied as written and no further interpretation is appropriate.” Herman at 581.
“However, where a statute is found to be subject to various interpretations, a court called
upon to interpret its provisions may invoke rules of statutory construction in order to arrive
at legislative intent.” Cline v. Ohio Bur. of Motor Vehicles, 61 Ohio St. 3d 93, 96, 573
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N.E.2d 77 (1991).
{¶ 23} Viewing the language in R.C. 3105.171 and its purpose, it is clear that the
intent is for equity to be done between divorcing parties. For example, even if a spouse
has separate property, the court may decide not to disburse the property to that spouse.
See R.C. 3105.171(D). The court may also make a distributive award from separate
property in lieu of a division of marital property “to achieve equity between the spouses,”
if division of marital property would be burdensome or impracticable. R.C.
3105.171(E)(2). The terms “equity” and “equitable” are also used throughout the statute.
In addition, R.C. 3105.171(C)(1) provides, as a starting point, that “the division of marital
property shall be equal.” R.C. 3105.171(C)(2) further provides that “[e]ach spouse shall
be considered to have contributed equally to the production and acquisition of marital
property.” In view of these facts, we do not find that R.C. 3105.171(A)(2)(b) is in need
of interpretation.
{¶ 24} Assuming for the sake of argument that R.C. 3105.171(A)(2)(b) is subject
to different interpretations, the principles of statutory construction found in R.C. 1.49 let
courts consider:
(A)The object sought to be attained;
(B) The circumstances under which the statute was enacted;
(C) The legislative history;
(D) The common law or former statutory provisions, including laws upon the
same or similar subjects;
(E) The consequences of a particular construction;
(F) The administrative construction of the statute.
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{¶ 25} As a preliminary point, Ohio does not have official legislative history. See,
e.g., DIRECTV, Inc. v. Levin, 181 Ohio App. 3d 92, 2009-Ohio-636, 907 N.E.2d 1242, ¶ 33
(10th Dist.). Moreover, nothing accompanying the amendment of R.C. 3105.171 or R.C.
3105.12 (the statute pertaining to common law marriage) indicates the legislative history
or intent. Our decisions interpreting R.C. 3105.171(A)(2)(b) were also issued several
years after both statutes became effective – meaning that we would have been aware
that common law marriage had been abolished.
{¶ 26} With respect to the consequences of a particular construction, Rebecca has
discussed State v. Carswell, 114 Ohio St. 3d 210, 2007-Ohio-3723, 871 N.E.2d 547, which
addressed the Defense of Marriage Amendment and how it affected an existing domestic
violence statute. In 2004, the Ohio Constitution was amended to provide that: “ ‘Only a
union between one man and one woman may be a marriage valid in or recognized by this
state and its political subdivisions. This state and its political subdivisions shall not
create or recognize a legal status for relationships of unmarried individuals that intends
to approximate the design, qualities, significance or effect of marriage.’ ” Id. at ¶ 2,
quoting Ohio Constitution, Article XV, Section 11.
{¶ 27} Courts have held that the entirety of the Defense of Marriage Act
Amendment, and not merely the first sentence, is unconstitutional, based on the decision
in Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).3 See Petty v. Blount-
Petty, 2017-Ohio-7035, 95 N.E.3d 729, ¶ 21-23 (5th Dist.), citing Obergefell v. Hodges,
S.D.Ohio No. 1:13-cv-501, 2-3 (Nov. 2, 2015). Thus, it is questionable whether the
3 In Obergefell, 135 S. Ct. 2584, 192 L. Ed. 2d 609, the court invalidated such state
amendments, including Ohio’s, because they deprived same-sex couples of equal
protection and due process rights under the Fourteenth Amendment.
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amendment’s prohibition against creating “legal relationships” approximating marriage is
still viable. However, even if that were so, it would not affect the result in the case before
us.
{¶ 28} in Carswell, the Supreme Court of Ohio stressed that statutes adopted
before the Defense of Marriage Amendment (like R.C. 3105.171) still enjoy a presumption
of constitutionality, because “the general rule as to the interpretation of constitutional
amendments is that ‘ “[t]he body enacting the amendment will be presumed to have had
in mind existing constitutional or statutory provisions and their judicial construction,
touching the subject dealt with.” ’ ” Id. at ¶ 6, quoting State ex rel. Lake Cty. Bd. of
Commrs. v. Zupancic, 62 Ohio St. 3d 297, 303, 581 N.E.2d 1086 (1991) (Moyer, C.J.,
dissenting.) (Other citation omitted.)
{¶ 29} In Carswell, the Supreme Court of Ohio noted that the Defense of Marriage
Amendment did not expressly repeal the statute under consideration, and that it,
therefore, would have to consider whether the statute had been repealed by implication.
Id. at ¶ 8. The court stressed, however, that “repeals by implication are disfavored as a
matter of judicial policy.” Id. Regarding the part of the amendment that prohibited
creating legal relations, the court observed that it “prohibits the state and its political
subdivisions from circumventing the mandate of the first sentence by recognizing a legal
status similar to marriage (for example, a civil union).” Id. at ¶ 15.
{¶ 30} In Bryan v. Bryan, 8th Dist. Cuyahoga No. 97817, 2012-Ohio-3691, the
Eighth District Court of Appeals considered this issue in detail, commenting that Carswell
had “explained the difference between the institution of marriage and other kinds of
relationships.” Id. at ¶ 20. After discussing the differences, the court stated that:
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“Thus, the Ohio Supreme Court explained that any legally
established relationship bearing less than all the attributes of marriage is
constitutional.” Cleveland Taxpayers for Ohio Constitution v. Cleveland,
8th Dist. No. 94327, 2010-Ohio-4685 (City's domestic partner registry did
not violate the Marriage Amendment because it did not give partners all of
the attributes of a marriage). See also Fitz v. Fitz, 8th Dist. No. 92535,
2009-Ohio-5236 (Marriage Amendment does not prevent courts from
making factual determination of cohabitation because “cohabitation” does
not confer a legal status tantamount to marriage). Likewise, here, the court
only looked at the years the parties lived together for purposes of making
an equitable distribution of property. The court's doing so, did not give the
parties' relationship prior to the marriage all of the attributes of a marriage.
The date was only extended for purposes of making an equitable
distribution of the property.
R.C. 3105.171(A) also does not mandate that a marriage commences every
time parties live together. The provision simply provides the trial court with
the discretion to apply an earlier date if the facts require it in order to make
an equitable distribution of property.
Id. at ¶ 21-22.
{¶ 31} We agree. By choosing a date prior to ceremonial marriage, trial courts
are simply acting within their equitable discretion to divide assets, not creating a legal
status of marriage.
{¶ 32} Obviously, Carswell and Bryan were decided before Obergefell. However,
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if we apply the principles of construction in Carswell to the 1991 amendment of R.C.
3105.12 (which prohibited common law marriage), the result is the same. Specifically,
R.C. 3105.171(A)(2)(b) already existed at the time common law marriage was prohibited.
R.C. 3105.12 did not expressly repeal the existing statute, and there is no indication of
an implicit intent to repeal.
{¶ 33} Accordingly, the trial court erred as a matter of law by refusing to consider
a date prior to the ceremonial marriage for purposes of deciding if the Hornbecks’ property
was separate or marital. As a result, this matter must be remanded for consideration of
whether applying the ceremonial date of marriage was inequitable.
{¶ 34} We note that in the judgment entry and decree of divorce, the trial court
made the following statement about the parties’ credibility:
The Court finds from the totality of the credible evidence, that both of
the parties in this case lack credibility, and to this end, they were both readily
willing and able to disregard the truth in order to achieve a financial
advantage on almost every issue before this Court.
Doc. #41, p. 2.
{¶ 35} Despite the court’s statement, several pertinent matters were either
undisputed or were established by extrinsic evidence. First of all, Rebecca was
employed when the parties moved in together in May 2000. They were engaged at the
time and planned to marry. At that point, Rebecca had substantial savings and 401k
accounts. After the parties moved in together, they pooled their finances to maintain a
common household. Although John purchased two properties (the marital home and the
rental property) before the marriage, Rebecca did contribute her own money toward
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improvements. Specifically, and unlike the wife in Drumm, Rebecca used her own funds
($8,790) to repair the roof on the marital home in August 2001, prior to the parties’
ceremonial marriage.
{¶ 36} After John’s daughter came to live with them in 2001, the parties chose for
Rebecca to stay home and provide care for her. Specifically, both parties testified that
John did not want Rebecca to work; instead, she was to take care of the house and
daughter. There was no dispute that Rebecca performed in all parental capacities,
including coaching sports teams and taking the daughter to sports games, band practices,
and other events. Rebecca was, thus, financially dependent on John both before and
after the ceremonial marriage after she stopped working outside the home.
{¶ 37} In addition, Rebecca offered evidence at trial about other financial
contributions she made from her separate property between the time she moved in and
the date of the ceremonial marriage. John did not dispute these items and offered no
contradictory evidence. These items included: paying for a rust remover system for the
marital residence; substantial amounts paid for utilities for the marital residence, including
phone, gas, trash, and electric; substantial payments on credit cards in John’s name;
payments for insuring the house and property; life insurance payments for John’s
daughter; property tax payments; and payments to an attorney regarding the rental
property.
{¶ 38} Accordingly, we agree with Rebecca that evidence existed upon which to
conclude that May 2000 could have been selected under R.C. 3105.171(A)(2)(b) as the
equitable date for determining marital property. However, since this is a decision to be
made in the first instance by the trial court, we will simply reverse the trial court on this
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point, and remand for further proceedings consistent with our opinion.
{¶ 39} As a final matter, when Rebecca’s counsel filed a motion during trial, asking
the court to use a de facto beginning date for the marriage, the trial court stated that “[i[t
would have been nice to have this document prior to the third day of testimony in the
cases.” September 21, 2017 Transcript (“Tr. 3”), p. 6. As a courtesy to the court, this
was undoubtedly true. However, “no motion is required for the trial court to consider the
use of a de facto date. It is within the exercise of the court's equitable powers, as well
as its statutory authority, for the trial court to declare and apply a date for the division of
marital property.” Heyman v. Heyman, 10th Dist. Franklin No. 05AP-475, 2006-Ohio-
1345, ¶ 35.
{¶ 40} Based on the preceding discussion, Rebecca’s First Assignment of Error is
sustained.
III. John’s Voluntary Underemployment
{¶ 41} Rebecca’s Second Assignment of Error states that:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Held That the Plaintiff-
Appellee-Husband Was Not Voluntarily Underemployed.
{¶ 42} According to Rebecca, the trial court abused its discretion and also entered
a judgment that was against the manifest weight of the evidence when it found that John
was not voluntarily underemployed. Rebecca points to John’s own admissions in his
testimony, which demonstrate that, as he was contemplating divorce, John was fired from
a well-paying job for failing to perform a minimal task (notifying his staff of the need to be
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drug-tested), when he had performed that task for the previous four years he had been
employed. John did not respond to this assignment of error (nor did he respond to any
of the assignments of error, other than merely citing case law indicating that trial court
decisions are reviewed for abuse of discretion).
{¶ 43} In rejecting Rebecca’s request for spousal support, the trial court concluded
that, despite having earned $52,000 per year shortly before filing for divorce, and currently
being employed at $11 an hour, John was not voluntarily underemployed. The court
noted that John had contended this was the only job he could find and that he was looking
for other work. The court then expressed hope that John would find a better job when
one became available. Doc. #41 at p. 19.
{¶ 44} “ ‘When considering the relative earning abilities of the parties in connection
with an award of spousal support, Ohio courts do not restrict their inquiry to the amount
of money actually earned, but may also hold a person accountable for the amount of
money [that] a “person could have earned if he made the effort.” ’ ” Kraft v. Kraft, 2d
Dist. Montgomery No. 25982, 2014-Ohio-4852, ¶ 21, quoting Donese v. Donese, 2d Dist.
Greene No. 97-CA-70, 1998 WL 165012, *3 (April 10, 1998) (Other citation omitted.)
Accord Blevins v. Blevins, 2d Dist. Greene No. 2018-CA-23, 2019-Ohio-297, ¶ 10;
Williams-Booker v. Booker, 2d Dist. Montgomery No. 21752, 2007-Ohio-4717, ¶ 34.
“Because R.C. 3105.18(C) permits inquiry into a party's earning potential, Ohio courts
often impute income to parties who are voluntarily underemployed or otherwise not
working up to their full earning potential.” Miller v. Miller, 2d Dist. Montgomery No.
14540, 1994 WL 730560, *4 (Dec. 28, 1994).
{¶ 45} The Supreme Court of Ohio has said that “the question whether a [litigant]
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is voluntarily (i.e., intentionally) unemployed or voluntarily underemployed is a question
of fact for the trial court. Absent an abuse of discretion, that factual determination will
not be disturbed on appeal.” Rock v. Cabral, 67 Ohio St. 3d 108, 112, 616 N.E.2d 218
(1993). An abuse of discretion “ ‘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), quoting State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144
(1980). “It is to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50
Ohio St. 3d 157, 161, 553 N.E.2d 597 (1990). Decisions are unreasonable if no sound
reasoning supports the decision. Id. Accord Aldo v. Angle, 2d Dist. Clark No. 09-CA-
103, 2010-Ohio-2008, ¶ 33.
{¶ 46} After reviewing the record, we cannot find an absence of sound reasoning
for the trial court’s decision when giving deference to the court’s credibility determinations.
The trial court found that John lacked credibility and was “both readily willing and able to
disregard the truth in order to achieve a financial advantage on almost every issue before
this Court.” Doc. #41 at p. 2.
{¶ 47} However, the court evidently accepted John’s testimony that he was not
voluntarily underemployed even though in some respects John’s testimony supported the
voluntary nature of his underemployment. As noted in the statement of facts, John
resigned in lieu of being fired from his employment as a safety director for Bulk Transit,
where he had worked for nearly five years. This occurred in February 2016, when John
was earning about $52,000 per year. John also stated that a year before he resigned,
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he was not happy and had divorce in mind. In this regard, the following exchange took
place:
Q. You lost your job in February of ’16, correct?
A. Yes.
***
Isn’t it true that when you determined you did not want to be married to Mrs.
Hornbeck that you lost your job for doing something that would have been
quite simple to do, administer a test –
***
The WITNESS: Please repeat that.
Q. Isn’t it true – well, let me ask you a different way, then. Were you let
go for non-complying, for not giving tests, correct?
A. Correct.
Q. What would you have to do to physically do, to comply and give those
tests.
A. To notify the individuals that they need to take the tests.
Q. And had you done that successfully for the four or five years before
that?
Four years, yes.
Q. And then at the time you were unhappy with the marriage, you just
didn’t do that anymore, did you?
A. Correct.
Q. Okay. So now instead of making $52,000 a year, you are making * * *
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$11 an hour.
A. Correct.
Tr. 2 at pp. 12-14.
{¶ 48} Even if the trial court had found John to be voluntarily underemployed, the
second component of its inquiry would have been what amount of income John should
be accountable for if he made the effort. Kraft, 2d Dist. Montgomery No. 25982, 2014-
Ohio-4852, at ¶ 20. There was conflicting evidence on this issue. John testified that he
had tried to find better-paying work. However, he admitted that he was selective in
applying for positions. John testified that he had not applied at trucking companies where
he had not worked in Springfield because he was looking for a safety position and none
were available when he looked. Tr. 2, p. 11. Nonetheless, the court was free to believe
John’s testimony that he had made an adequate effort to find a higher paying job and
evidently concluded that John was realizing his full employment capacity.
{¶ 49} Given John’s testimony, if believed by the court, there was a sound basis
for the trial court’s decision not to impute income to John. Based on the preceding
discussion, we find that the trial court did not abuse its discretion in concluding that John
was not voluntarily underemployed. Rebecca’s Second Assignment of Error, therefore,
is overruled.
IV. Rebecca’s Voluntary Underemployment
{¶ 50} Rebecca’s Third Assignment of Error states that:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Found That [sic] the
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Defendant-Appellee-Wife To Be Voluntarily Underemployed.
{¶ 51} In addressing the issue of spousal support, the trial court concluded that
Rebecca was voluntarily underemployed. The court based its decision on the fact that
Rebecca was babysitting two days a week, for an average income of $70 per week, and
was not looking for work at the time. In addition, the court noted that Rebecca had not
looked for work during the 19 months the case had been pending. Doc. #41 at p. 19.
As a result, the court imputed income to Rebecca equal to what John was earning –
$11.00 per hour.
{¶ 52} The standard of review was outlined above. According to Rebecca, the
trial court should have considered that she had been out of the workforce for many years
and that she had health problems. In the latter regard, Rebecca stresses that she was
not required to present expert testimony of a disability so long as she testified and was
subject to cross-examination.
{¶ 53} We have said that “[t]he medical cause of a person's disability is not an
essential fact requiring proof when mere disability, regardless of cause, is asserted in an
action for divorce or support.” Milam v. Milam, 2d Dist. Greene No. 94-CA-23, 1994 WL
579722, *2 (Oct. 19, 1994). Furthermore, we have said that expert medical testimony is
not needed to substantiate “ ‘certain medical problems where the injured party testifies
and is subject to thorough cross-examination.’ ” Billingham v. Billingham, 2d Dist.
Montgomery No. 18403, 2001 WL 127764, *3 (Feb. 16, 2001), quoting Gullia v. Gullia, 93
Ohio App. 3d 653, 662, 639 N.E.2d 822 (8th Dist.1994).
{¶ 54} Nonetheless, the trial court was not required to believe Rebecca’s testimony
about her health conditions, and it clearly did not believe her. See Milam at *2 (“[a]
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factfinder's decision whether to credit a particular witness is not a matter for review upon
appeal”).
{¶ 55} As to Rebecca’s work history, she did have prior factory work experience
that ended in 2001. For around the next 17 years, she was a stay-at-home parent or
wife, except between 2010 and 2018, when she baby-sat children. In light of these facts,
we may have used a different amount of wages to be imputed to Rebecca. Specifically,
when Rebecca worked five days a week babysitting, she earned about $150 or $160 a
week, or between $7,800 to $8,320 per year. The amount the trial court imputed to her
was $21,450, which seems high, based on the amount of time she had been out of the
workforce and her lack of college or vocational education after high school. However,
an unsound reasoning process is not established where “the reviewing court, were it
deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would support a
contrary result.” AAAA Ents., Inc., 50 Ohio St. 3d at 161, 553 N.E.2d 597.
{¶ 56} Accordingly, Rebecca’s Third Assignment of Error is overruled.
V. Rebecca’s Alleged Health Issues
{¶ 57} Rebecca’s Fourth Assignment of Error states as follows:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Found That the Defendant-
Wife Had Not Provided Sufficient Evidence to Suggest that Defendant Has
Health Issues That Prevent Her From Seeking and Obtaining Gainful
Employment.
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{¶ 58} According to Rebecca, the trial court erred in finding that she did not provide
sufficient evidence of health issues prohibiting her from seeking employment. One factor
the court mentioned was that Rebecca had not been to a doctor in two years.
{¶ 59} According to Rebecca, she testified in detail about her health issues and
about the fact that she had not been able to afford to see a doctor. Rebecca contends
on appeal that she walks bent over and often uses a cane. Again, while Rebecca did
not have to provide expert testimony, the trial court did not believe her account. We have
often stressed that “[t]he decision whether, and to what extent, to credit the testimony of
particular witnesses is within the peculiar competence of the factfinder, who has seen and
heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684,
*4 (Aug. 22, 1997). There is also no evidence in the record about Rebecca’s gait or her
use of a cane. We “cannot add matter to the record * * *, which was not a part of the trial
court's proceedings, and then decide the appeal on the basis of the new matter.” State
v. Ishmail, 54 Ohio St. 2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus.
For these reasons, the Fourth Assignment of Error is overruled.
VI. Real Estate
{¶ 60} Rebecca’s Fifth Assignment of Error states that:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Failed to Find Some Portion
of the Real Estate Parcels to be Marital Property.
{¶ 61} Under this assignment of error, Rebecca contends that, even if a date
before the ceremonial date of marriage were not used, the trial court erred in failing to
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consider that the properties purchased before marriage were mortgaged after the date of
marriage and were also were paid for with marital funds. Thus, even if the properties
were considered as originally separate, Rebecca argues that she was entitled to a portion
of the equity that accrued during marriage.
{¶ 62} Pursuant to R.C. 3105.171(A)(3)(a)(iii), marital property includes: “[e]xcept
as otherwise provided in this section, all income and appreciation on separate property,
due to the labor, monetary, or in-kind contribution of either or both of the spouses that
occurred during the marriage.” (Emphasis added). After deciding which property is
marital and which is separate, the trial court “shall divide the marital and separate property
equitably between the spouses * * *.” (Emphasis added.) R.C. 3105.171(B).
{¶ 63} Increased equity in a martial home during the marriage has been
appropriately treated as marital property. See, e.g., Wright v. Cramer, 2018-Ohio-764,
107 N.E.3d 836, ¶ 15 (2d Dist.); Spicer v. Spicer, 12th Dist. Butler No. CA95-06-115, 1996
WL 204115, *2 (Apr. 29, 1996); Goebel v. Werling, 9th Dist. Summit No. 19385, 1999 WL
548969, *1 (July 28, 1999) (“reduction in a mortgage during a marriage is equivalent to a
marital investment and is considered part of the marital equity”); Scott v. Scott, 11th Dist.
Trumbull No. 2007-T-0059, 2008-Ohio-530, ¶ 21.
{¶ 64} In the case before us, the marital home was purchased for $90,000 in
August 2000. At that time, John took out a mortgage for $70,000. He refinanced for
$67,600 in November 2002, shortly before the ceremonial marriage date. The property
was then refinanced in January 2011 (during the marriage) for $73,600. While the other
mortgages were in only John's name, this mortgage was in both parties' names.
However, John never changed the deed to include Rebecca's name.
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{¶ 65} During the first day of trial, John identified the mortgage for the marital home
and stated that the principal balance was $35,131.14 as of March 3, 2017. Tr. 1 at p.
41. During the second day of trial (September 11, 2017), he stated that about $39,000
was still owed.
{¶ 66} For the tax years 2013, 2014, and 2015, John valued the marital property
on Form 8829 (expenses for business use of home) as having a fair market value of
$130,000. However, his real estate witness at trial indicated a value for the property of
only $64,000, even though the county auditor had appraised the property at $89,020 for
the house and $18,500 for the land.
{¶ 67} As was noted, the parties also had a rental property. John purchased this
property prior to marriage from his father for $40,000. One mortgage was placed on the
property in January 2003. Later, in November 2008, a mortgage for $37,400 was taken
out for the rental property. At the time of trial, only about $4,900 was still owed on the
rental property. John's real estate witness valued the house at $38,000, although the
auditor had listed the land as having a value of $24,980 and the house as having a value
of $40,810. The real estate witness later stated that his figures were what the parties
would net if they sold the properties themselves, after mortgages and taxes were
deducted. Tr. 3 at pp. 43-45.
{¶ 68} The trial court gave John the full amount of the equity in these houses as
his separate property, and divided a vacant lot that was valued at $6,000 between the
parties. It is clear that equity accrued during the marriage, as a $73,600 mortgage taken
out in 2011 for the marital property (and in both parties’ names) was reduced to slightly
more than $35,000 by the time of trial. In addition, even if one assumes a $38,000 value
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for the rental property, the property was mortgaged in 2008 for $37,400, which had been
reduced by the time of trial to $4,900. The total amount of equity, thus, was at least
$71,000, but the trial court did not award any of this money to Rebecca. Instead, the
court awarded her only one-half of the value of the $6,000 property, meaning that John
received $74,000 or more in assets, and Rebecca received $3,000 in assets. We cannot
conclude that the court’s decision was based on sound reasoning.
{¶ 69} Under this assignment of error, Rebecca also contends that the trial court
could have made a distributive award. The trial court did not order a distributive award
and simply concluded Rebecca should not receive any equitable relief, including $23,500
and other items she sought.
{¶ 70} “A distributive award is ‘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 and do
not constitute payments of spousal support, as defined in section 3105.18 of the Revised
Code.’ ” (Emphasis added.) Marcum v. Marcum, 116 Ohio App. 3d 606, 610, 688
N.E.2d 1085 (2d Dist.1996), quoting R.C. 3105.171(A)(1). Under R.C. 3105.171(E)(1),
“[t]he court may make a distributive award to facilitate, effectuate, or supplement a
division of marital property. The court may require any distributive award to be secured
by a lien on the payor's specific marital property or separate property.” A supplement
would be in addition to an award of marital property.
{¶ 71} R.C. 3105.171(F) outlines factors that should be considered in making a
distributive award, and R.C. 3105.171G) further provides that, “[i]n any order for the
division or disbursement of property or a distributive award made pursuant to this section,
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the 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.’ ” Again, we apply an abuse of discretion standard in
our review. See, e.g., Briganti v. Briganti, 9 Ohio St. 3d 220, 222, 459 N.E.2d 896 (1984).
{¶ 72} In view of the facts of this case, the trial court could have made a distributive
award to Rebecca, even if the court had used the ceremonial marriage date and had
concluded that the equity in separate property was not marital property (although this
would have been incorrect). See e.g., Chance v. Chance, 9th Dist. Wayne No.
02CA0003, 2002-Ohio-5767, ¶ 13 (trial court did not abuse its discretion in disbursing
farm to husband as separate property and then ordering distributive award to wife of half
the value of property after taxes. R.C. 3105.171(E)(1) clearly authorizes a trial court to
‘make a distributive award to facilitate, effectuate, or supplement a division of marital
property.’ ”)
{¶ 73} Accordingly, the Fifth Assignment of Error is sustained, and this matter will
be remanded for the trial court to make a decision on the amount of equity in the
properties and to divide the equity equitably as a marital asset. Because we have
sustained the First and Fifth Assignments of Error, the court must also reevaluate the
distributive award issue.
VII. Waste and Financial Misconduct
{¶ 74} Because the Sixth and Seventh Assignments of Error address the same
point, we will consider them together. Rebecca’s Sixth and Seventh Assignments of
Error state:
The Trial Court Materially Erred and Abused Its Discretion Against
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the Manifest Weight of the Evidence When It Failed to Find the Plaintiff-
Appellee Had Committed Waste and Financial Misconduct.
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Failed to Make a Distributive
Award to Defendant-Appellee-Wife.
{¶ 75} Under these assignments of error, Rebecca contends that the trial court
erred in failing to make a distributive award. In the Sixth Assignment of Error, Rebecca
relies on R.C. 3105.171(E)(3). However, this is not the correct subsection of the statute.
The case Rebecca cites is a 1988 decision, which quotes from “R.C. 3105.171(E)(3).”
See Appellant’s Brief, p. 26, quoting Rinehart v. Rinehart, 4th Dist. Gallia No. 96 CA 10,
1998 WL 282622, *11 (May 18, 1988). However, R.C. 3105.171 was amended in 2010.
See Am. Sub. H.B. 238, 2010 Ohio Laws File 37. At that time, a new subsection (E)(3)
was added, and the financial misconduct provision was renumbered as (E)(4).
{¶ 76} In the Seventh Assignment of Error, Rebecca relies on R.C. 3105.171(E)(4),
which is the correct subsection. This subsection provides that “[i]f 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.” According to Rebecca, John engaged in financial misconduct in these
ways: purposely losing his job; letting the marital home go into foreclosure
notwithstanding having received $23,800 from selling firearms in September 2016; selling
silver and claiming not to know what happened to silver that Rebecca owned; and giving
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his daughter a firearm that belonged to Rebecca.4
{¶ 77} Rebecca raised the issue of fraud and waste at trial, in specific reference to
the fact that John allowed the marital residence to go into foreclosure despite having sold
guns for $23,800 in September 2016, shortly before he filed for divorce. April 9, 2018
Transcript (“Tr. 6”), p. 61. The trial court did not make a finding on this point. As a
result, we assume the trial court rejected the contention. Dayton Monetary Assoc. v.
Becker, 126 Ohio App. 3d 527, 539, 710 N.E.2d 1151 (2d Dist.1998).
{¶ 78} The trial court concluded that most guns were John’s separate property
other than a few valued at a minimal sum ($1,466), which was divided equally.
Nonetheless, Rebecca contends that in addition to allowing himself to be fired from his
job for something he could easily have avoided, John also dissipated the $23,800 he
received for property sold during the marriage, and allowed the marital residence to go
into foreclosure. He also retained guns in his possession that he could have attempted
to sell which were separate property. An expert valued these guns at more than
$21,000.
{¶ 79} “ ‘The financial misconduct statute should apply only if the spouse engaged
in some type of wrongdoing (i.e., wrongful scienter).’ ” Feldmiller v. Feldmiller, 2d Dist.
Montgomery No. 24989, 2012-Ohio-4621, ¶ 18, quoting Mantle v. Sterry, 10th Dist.
Franklin No. 02AP-286, 2003-Ohio-6058, ¶ 32. “ ‘ “Typically, the offending spouse will
either profit from the misconduct or intentionally defeat the other spouse's distribution of
4 Notably, there was no evidence that the marital home was actually sold at a foreclosure
sale. All John indicated at trial was that he failed to make the $750 monthly payments
during the divorce action, despite having sold guns for $23,800, and that the bank had
filed a foreclosure action.
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marital assets.” ’ * * * Financial misconduct involves some element of profit or interference
with another's property rights.’ ” Id., quoting Mantle at ¶ 32. (Other citation omitted.)
{¶ 80} “Because financial misconduct involves some element of profit or
interference with another's property rights, the time frame in which the alleged misconduct
occurs may often demonstrate wrongful scienter.” Hammond v. Brown, 8th Dist.
Cuyahoga No. 67268, 1995 WL 546903, *3 (Sept. 14, 1995). For example, in Babka v.
Babka, 83 Ohio App. 3d 428, 615 N.E.2d 247 (9th Dist.1992), a husband liquidated a joint
account just before the parties’ divorce. Although the husband testified that he had used
the funds to pay marital debts, he could not satisfactorily account for the funds. Id. at
436.
{¶ 81} The complaining party has the burden of proof, and we review for abuse of
discretion. Brown v. Brown, 2014-Ohio-2402, 14 N.E.3d 404, ¶ 14 (2d Dist.). The court
does not have to find malicious intent; it need only find “that a spouse has engaged in
knowing wrongdoing.” Best v. Best, 10th Dist. Franklin No. 11AP-239, 2011-Ohio-6668,
¶ 21.
{¶ 82} Furthermore, courts have found proof of financial misconduct where a
spouse has violated the court’s restraining orders. See, e.g., Galloway v. Khan, 10th
Dist. Franklin No. 06AP-140, 2006-Ohio-6637, ¶ 27; Caron v. Manfresca-Caron, 10th
Dist. Franklin No. 97APF03-438, 1997 WL 723262, *6 (Nov. 20, 1997).
{¶ 83} In March 2018, Rebecca filed a motion for contempt, contending, among
other things, that John had violated the court’s temporary orders by failing to “pay the
marital debts for residence and food” as had been their custom, and by dissipating,
disposing, or selling real or personal property without her written consent. See Doc. #27,
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p. 1.5 Rebecca presented testimony and evidence about these matters on April 9, 2018,
including pictures of very low temperatures in the house, because John would not let her
turn on the heat. For example, at various times on December 16, 2016, the temperature
in the house was between 46 and 49 degrees. See Tr. 6 at p. 9 and Ex. A-2. This was
around three months after John had received $23,800 for guns he had sold. She also
testified that he did not buy food for the house and about other ways in which the orders
had been violated, including failing to pay the mortgage.
{¶ 84} The facts alleged in support of these two assignments of error rely, for the
most part, on the credibility determinations of the trial court and the reasonable weight to
be given to the uncontested facts. We find that the trial court did not abuse its discretion.
Accordingly, the Seventh Assignment of Error will be overruled. The Sixth Assignment of
Error is overruled as duplicative.
VIII. Spousal Support
{¶ 85} Rebecca’s Eighth Assignment of Error states that:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Did Not Award Spousal
Support to Wife.
{¶ 86} According to Rebecca, the trial court erred in not awarding spousal support
because John’s earnings were below his earning capacity, and Rebecca was dependent
on his income, based on the years she was out of the labor force. Rebecca also
contends that the trial court abused its discretion by refusing to consider that she was
5 The trial court never ruled on the contempt motion.
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unable to work. Finally, Rebecca contends that the factors supporting an indefinite
support award were present, based on the 15-year duration of the marriage.
{¶ 87} R.C. 3105.18(B) allows courts to award spousal support on the request of
either party, after the division or disbursement of property has been decided. R.C.
3105.18(C)(1) provides a list of 13 factors the court must consider, and also allows the
court to consider “[a]ny other factor that the court expressly finds to be relevant and
equitable.” R.C. 3105.18(C)(1)(n). The trial court considered the applicable factors but
found that no spousal support should be ordered. We review spousal support decisions
for abuse of discretion. Tremaine v. Tremaine, 111 Ohio App. 3d 703, 706, 676 N.E.2d
1249 (2d Dist.1996)
{¶ 88} In view of our prior discussion, the trial court must be reversed on this point.
Specifically, where a division of property is remanded for additional findings, the spousal
support determination must also be remanded. Spousal support determinations may only
be made after the trial court has divided the property. Carmichael v. Carmichael, 9th Dist.
Wayne No. 11CA0036, 2012-Ohio-5811, ¶ 12. Because we sustained the First and
Fifth Assignments of Error concerning the dates applicable to the division of marital
property and the division of real estate, the spousal support decision necessarily must be
reversed. Accordingly, the Eighth Assignment of Error is sustained, and this matter will
be remanded to the trial court for reconsideration of spousal support.
IX. Discovery Requests
{¶ 89} Rebecca’s Ninth Assignment of Error states as follows:
The Trial Court Materially Erred and Abused Its Discretion Against
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the Manifest Weight of the Evidence When It Did Not Order Plaintiff-
Appellee to Comply With Discovery Requests
{¶ 90} Under this assignment of error, Rebecca contends that the trial court erred
by failing to force John to disclose information about his gun ownership and about
communication that John received from Fidelity Investments. Rebecca notes that she
filed five discovery requests between December 26, 2016 and April 16, 2018, and that
the court abused its discretion in denying the latest request (about a Fidelity letter), due
to displeasure with Rebecca’s counsel.
{¶ 91} Civ.R. 33 and 34 allow parties to serve other parties with interrogatories and
requests for production of documents. Civ.R. 37(A) further provides that:
On notice to other parties and all affected persons, a party may move
for an order compelling discovery. The motion shall include a certification
that the movant has in good faith conferred or attempted to confer with the
person or party failing to make discovery in an effort to obtain it without court
action.
{¶ 92} If a party fails to supplement earlier responses, the court can impose various
sanctions, including “any of the orders listed in Civ.R. 37(B)(1)(a) through (f).” Civ.R.
37(C)(1)(c). One such order is “[s]taying further proceedings until the order is obeyed *
* *.” Civ.R. 37(B)(1)(d). A trial court’s discovery rulings are reviewed for abuse of
discretion. See, e.g., State ex rel. The V Cos. v. Marshall, 81 Ohio St. 3d 467, 469, 692
N.E.2d 198 (1998). After reviewing the record, we find no abuse of discretion.
{¶ 93} This action was filed on November 12, 2016 and was at issue on November
22, 2016, when John filed his answer to Rebecca’s counterclaim for divorce. The trial
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court did not establish discovery deadlines, but both sides filed discovery requests early
in the case. In January 2017, John filed a motion for a protective order, asking that he
not be required to respond to Rebecca’s first set of interrogatories, or not be required to
respond publicly. The record does not reflect a decision on the motion.
{¶ 94} The first day of the divorce hearing began on July 11, 2017, and Rebecca
did not raise any issues about discovery at that time. She then filed a second set of
interrogatories on August 1, 2017, about six weeks before the next hearing, which was to
be held on September 11, 2017. However, Rebecca’s counsel did not raise any
discovery issues at the September 11 hearing. See Tr. 2 at p. 5 (where counsel indicated
no preliminary issues needed to be addressed.)
{¶ 95} On September 21, 2017, Rebecca filed a motion to compel John to answer
the first set of interrogatories that had been filed in December 2016. Notably, this was
a long time after the answers were due. On September 25, 2017, the trial court ordered
John to provide a list of all firearms he had owned since the date of marriage, to provide
an explanation of the disposition of the firearms, and to allow Rebecca’s expert to inspect
all firearms in which John currently had an interest. The court also heard testimony that
day regarding the divorce. This was the fourth day of evidentiary hearings.
{¶ 96} In November 2017, Rebecca filed a notice of appeal from an entry that the
court filed concerning the date to be used for determining marital property. However, in
January 2018, we granted John’s motion to dismiss the appeal. After the case returned
to the trial court, the next divorce hearing (the fifth) was held on March 12, 2018. At that
time, Rebecca’s attorney again told the court that no preliminary matters needed to be
discussed. March 12, 2018 Transcript (“Tr. 5”), p. 7. Prior to the hearing, however,
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Rebecca had filed a motion to compel on March 6, 2018, contending that John had not
complied with the trial court’s September 25, 2017 entry. In apparent response to the
motion, John filed a certificate on March 9, 2018, indicating that he had served Rebecca’s
attorney with a gun list.
{¶ 97} On March 22, 2018, Rebecca filed a third set of requests for production of
documents and interrogatories. John then filed a certificate on March 28, 2018, stating
that he had served Rebecca’s attorney with a second gun list. This list indicated that
John had sold two guns in September 2016 for $23,800. See Doc. #35, p. 1. On April
6, 2018, Rebecca filed a fourth request for production of documents, asking for receipts
regarding the September 2016 gun sales, along with documentation about where the
money had been deposited and proof of what was done with the money.
{¶ 98} At the next hearing (the sixth), which was held on April 9, 2018, Rebecca
did not raise any discovery issues. Although the motion to compel had never been
addressed, the trial court may have assumed that the March 6, 2018 motion had been
resolved by the parties, given that John had provided two additional gun lists, and that
Rebecca failed to raise the issue in the April 9, 2018 hearing.
{¶ 99} The seventh and final divorce hearing was scheduled for April 17, 2018.
On the day before the hearing, Rebecca filed a fifth request for production of documents,
asking for the same information that had been requested on April 6, 2018. However, a
new request was added, asking for information about a letter John had received from
Fidelity Investments on April 10, 2018. See Doc. #39. A copy of the envelope was
attached to the request.6
6 Only a copy of the envelope was attached. Although the parties were still married and
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{¶ 100} At the final hearing, the court inquired about the fifth request for discovery,
and Rebecca’s attorney indicated that they were still not getting all the information from
John. In particular, Rebecca’s attorney mentioned the $23,800 in gun sales; the trial
court then said that Rebecca’s attorney could call John and ask him questions. April 17,
2018 Transcript (“Tr.7), p. 7. The court further stated that it would not require John to
respond to the April 16, 2018 discovery request. Id. at p. 8. Rebecca’s counsel did ask
John questions about the gun sales. Id. at pp. 36-39.
{¶ 101} During the hearing, Rebecca also testified and identified a copy of the
Fidelity envelope. She said it had been delivered to the parties’ house a few days after
the April 9, 2018 hearing. Id. at p. 20 and Ex. FFF. Rebecca further said she believed,
after seeing this information, that John had concealed assets. In addition, Rebecca
testified that she had asked John about any investments when she gave him the first set
of interrogatories in December 2016. Id. at p. 21.
{¶ 102} At this hearing, John denied having any current investments with Fidelity.
He said he previously had a 401K with Fidelity from 1989 to 2004, and had cashed in the
account in either 2007 or 2008. Id. at pp. 33-34. John said he had reported this on his
2008 tax returns and claimed that it “probably went into Becky’s checking account where
money was forwarded into.” Id. at p. 35. According to John, this money no longer
existed. Id.
{¶ 103} During cross-examination, Rebecca’s attorney questioned John about the
Fidelity account. Id. at p. 41. John admitted seeing the recent communication from
were residing in the same house, John had forbidden Rebecca from opening any mail
that was addressed to him.
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Fidelity, and stated that “it’s still unopened, if it’s there.” Id. As to why Fidelity would be
mailing something to him in 2018, John said, “I can answer that this afternoon. I’ll go
home and open it. I don’t know what it is. I haven’t seen it.” Id. at p. 42.
{¶ 104} We note that Rebecca did not certify in the March 6, 2018 motion that she
had attempted to informally resolve the discovery dispute. This is a requirement under
Civ.R. 37(A).
{¶ 105} Furthermore, the case had been pending for about a year and a half.
Counsel had ample opportunity to obtain discovery and file motions to compel, rather than
waiting until after several evidentiary hearings had been held. As noted, Rebecca’s
counsel also often failed to raise issues during hearings, when she could have alerted the
court to any problem. As a result, we cannot find an abuse of discretion in connection
with the trial court’s discovery rulings.
{¶ 106} Our review of the case, which includes all the pleadings and transcripts,
reveals that John was evasive about property. For example, an expert that Rebecca
hired had to make two trips to the property to evaluate the guns that John currently owned.
The extra trip was needed because the expert was only shown six guns during his first
visit. September 25, 2017 Transcript (“Tr. 4”), p. 41. When the expert returned, he was
able to see the other six guns, plus four Class III (fully automatic) firearms. Id. at pp. 58-
59. The expert valued the Class III firearms as follows: (1) $6,000 (American 180 drum-
fed .22 long rifle); (2) $10,000 (M-1919 A6 Browning with a bipod); (3) $200 (Remington
870 Wingmaster pump action shotgun); and (4) $5,000-$5,500 (Israeli-made 9-millimeter
sub-machine gun). Id. at pp. 60-62, 64-65, 68-71, and 72-74. The trial court
acknowledged John’s deceptiveness, finding that John was not credible about financial
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matters. Doc. #41 at p. 2.
{¶ 107} While we do not find an abuse of discretion regarding the discovery orders,
the trial court may reconsider evidence about Fidelity Investments since this matter is
being remanded for further proceedings.
{¶ 108} Based on the preceding discussion, the Ninth Assignment of Error is
overruled.
X. Expert Fees
{¶ 109} Rebecca’s Tenth Assignment of Error states that:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Failed to Obligate Plaintiff to
Pay a Portion If Not All of the Gun Expert Appraisal Fees.
{¶ 110} According to Rebecca, the trial court also abused its discretion by failing
to order John to pay any part of the gun expert fees. In this regard, Rebecca contends
that the expert appeared for trial, but the court did not let him testify because he had not
been shown all the guns. As a result, the expert had to make a second trip to see
additional guns and show up for trial a second time, causing unnecessary fees. As with
all other assignments of error, John has not responded to Rebecca’s argument.
{¶ 111} At trial, the expert testified that his time to date would result in a $325
charge. Tr. 3 at p. 82. The trial court overruled Rebecca’s request for reimbursement
of the firearm appraisal fees without specifying a reason. See Doc. #41 at p. 18.
{¶ 112} In divorce cases, “a court may award all or part of reasonable attorney's
fees and litigation expenses to either party if the court finds the award equitable.” R.C.
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3105.73(A). These orders are reviewed for abuse of discretion. Rucks v. Moore, 2d
Dist. Montgomery No. 27928, 2018-Ohio-4692, ¶ 46. There was no dispute that John
caused additional expense by failing to disclose all his guns during the expert’s initial visit
(which the court had ordered).
{¶ 113} Accordingly, the Tenth Assignment of Error is sustained, and this issue will
be remanded for further proceedings.
XI. Amendment of Taxes
{¶ 114} Rebecca's Eleventh Assignment of Error states that:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Did Not Order That the Parties
Amend Their Federal Income 2016 and 2017 Taxes to Married Filing Jointly.
{¶ 115} According to Rebecca, the trial court should have required the parties to
amend their 2016 and 2017 tax returns because John’s choice to file separately in those
years provided him with a refund and left Rebecca with a tax liability. In contrast, filing
jointly would have provided both parties with a refund. Furthermore, the parties had
always previously filed jointly.
{¶ 116} The trial court stated that the tax returns would provide a benefit mostly to
Rebecca and concluded that ordering amendment would not be equitable under the
circumstances of the case. Doc. #41 at p. 16. The trial court made no other comments
that would explain its reasoning. Again, we review the trial court’s division of property
for abuse of discretion. Neeley v. Neeley, 1st Dist. Hamilton No. 8203487, 1984 WL
7058, *2 (Nov. 14, 1984) (discussing amendment of tax return).
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{¶ 117} Rebecca presented testimony from a tax expert that if the parties had filed
jointly in 2016, they would have received a $1,202 refund. In that year, by filing
separately, John received a $1,107 refund on his federal taxes and $202 on his state
taxes. However, Rebecca paid $410 in taxes. The tax expert then returned to discuss
the 2017 returns. For that year, John improperly filed as a single person and received
refunds of $1,297 on his federal taxes and $208 on his state taxes. If John had properly
filed his taxes as a married person filing separately, he would have received a $1,122
refund on his federal taxes.
{¶ 118} Rebecca had not yet filed her return at the time of this testimony, but the
expert stated that Rebecca would owe $381 for 2017 if she filed separately. If the parties
filed jointly, there would have been a refund of $1,382.
{¶ 119} We have sustained the First and Fifth Assignments of Error regarding
division of marital property, and this assignment of error is also sustained. The court shall
reconsider this issue when it reevaluates the subjects of property division and spousal
support.
XII. Contempt
{¶ 120} Rebecca’s Twelfth Assignment of Error states that:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Did Not Make Any Findings
Either Way on Defendant-Appellant’s Motion for Contempt.
{¶ 121} Under this assignment of error, Rebecca notes that while the court heard
her contempt motion, it erred by failing to make any finding. As noted previously,
Rebecca filed a motion for contempt on March 6, 2018. At the March 12, 2018 hearing,
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John waived the seven-day requirement for filing motions, and the court indicated that the
motion would be heard that day. See Tr. 6 at p. 6. Rebecca then testified in detail
about various ways in which John had violated the agreed temporary orders of the court.
John’s testimony failed to address most of the alleged contemptuous actions.
{¶ 122} However, the judgment entry and decree of divorce failed to include any
finding about the contempt motion. Where trial courts fail to rule on motions, appellate
courts presume that the motions have been overruled. Becker, 126 Ohio App. 3d at 539,
710 N.E.2d 1151.
{¶ 123} The facts alleged in support of this assignment of error rely, for the most
part, on the credibility determinations of the trial court and the reasonable weight to be
given to the uncontested facts. We find that the result is not against the manifest weight
of the evidence, and, thus, the trial court did not abuse its discretion.
{¶ 124} The Twelfth Assignment of Error is overruled.
XIII. Credibility
{¶ 125} Rebecca’s Thirteenth Assignment of Error states as follows:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It Found that Defendant-
Appellant Was Not Credible.
{¶ 126} According to Rebecca, a review of the transcript fails to reveal any
instances where she disregarded the truth. She therefore contends that the trial court
abused its discretion by failing to refer to any instances where her testimony was not
credible.
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{¶ 127} We have repeatedly said that “[t]rial courts resolve witness credibility and
the weight to be accorded to the testimony.” Buckingham, 2018-Ohio-2039, 113 N.E.3d
1061, ¶ 41, citing Jenkins v. Jenkins, 2012-Ohio-4182, 975 N.E.2d 1060, ¶ 18 (2d Dist.).
“Because the factfinder * * * has the opportunity to see and hear the witnesses, the * * *
decision whether, and to what extent, to credit the testimony of particular witnesses is
within the peculiar competence of the factfinder, who has seen and heard the witness.”
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4.
{¶ 128} In this case, the trial court was able to see and hear the witnesses and
was in the best position to decide credibility. Consequently, the Thirteenth Assignment
of Error is overruled.
XIV. Alleged Incorrect Facts
{¶ 129} Rebecca’s Fourteenth Assignment of Error states as follows:
The Trial Court Materially Erred and Abused Its Discretion Against
the Manifest Weight of the Evidence When It’s [sic] Decision Showed
Findings of Fact That Were Simply Incorrect.
{¶ 130} In her final assignment of error, Rebecca contends that the trial court’s
judgment contains incorrect facts. The incorrect facts that the court allegedly found are:
(1) that John was employed at Rollins when, in fact, John testified that he was employed
at Springfield Mercy Hospital; (2) that the judgment awarded two motorcycles to John as
separate property when John testified that one motorcycle was purchased during the
marriage; and (3) that Rebecca asked for attorney fees, when Rebecca had testified that
she was not seeking fees.
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{¶ 131} Points one and three are correct. Tr. 7, pp. 25 and 29. As to the
motorcycles, John testified that he purchased one motorcycle in 1981 and did not recall
if the other was purchased before or after marriage. Tr. 1 at pp. 32-33. However, these
errors are irrelevant, because this matter is being reversed and remanded for further
proceedings, including the subject of the property division and spousal support.
Accordingly, this assignment of error is overruled.
XV. Conclusion
{¶ 132} Rebecca’s First, Fifth, Eighth, Tenth and Eleventh Assignments of Error
are sustained. The Second, Third, Fourth, Seventh, Ninth, Twelfth, Thirteenth, and
Fourteenth Assignments of Error are overruled, and the Sixth Assignment of Error is
overruled as duplicative of the Seventh Assignment of Error. The judgment, therefore, is
reversed in part and affirmed in part, and this cause is remanded to the trial court for
further proceedings consistent with this opinion.
.............
TUCKER, J., concurs.
FROELICH, J., concurs in part and dissents in part:
{¶ 133} I concur with the majority except for its holding that the trial court’s finding
regarding John’s waste and financial misconduct was not an abuse of discretion. Although
the evidence on this issue was confusing, there was sufficient evidence that John’s
conduct, especially concerning the marital residence, was knowingly done to interfere
with Rebecca’s distribution of marital assets.
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Copies sent to:
James E. Heath
Linda Joanne Cushman
Hon. Thomas J. Capper