Habtemariam v. Worku

[Cite as Habtemariam v. Worku, 2020-Ohio-3044.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Aster Habtemariam, :
Plaintiff-Appellee, :
No. 19AP-47
v. : (C.P.C. No. 16DR-146)
Abraha Worku, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 21, 2020
On brief: Priya D. Tamilarasan, for appellant. Argued:
Priya D. Tamilarasan.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
DORRIAN, J.
{¶ 1} Defendant-appellant, Abraha Worku, appeals the December 28, 2018
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
granting a decree of divorce to appellant and plaintiff-appellee, Aster Habtemariam. For
the following reasons, we reverse.
I. Facts and Procedural History
{¶ 2} On January 15, 2016, appellee filed in the trial court a complaint for divorce.
On February 11, 2016, appellee filed an amended complaint for divorce, a motion for
temporary restraining order, a motion for beneficial use of the marital residence, and a
motion for temporary orders. In her amended complaint, appellee asserted the parties
were married on February 4, 2003 in Columbus, Ohio, and had one child born as issue of
the marriage. In her motion for beneficial use of the marital residence, appellee sought an
order enjoining appellant from interfering with appellee's exclusive use and occupancy of
No. 19AP-47 2
the marital residence, which was located on Kenwick Road in Columbus, Ohio ("Kenwick
residence"), and requiring appellant to pay the mortgage on the Kenwick residence during
the pendency of the action.
{¶ 3} On February 22, 2016, the trial court filed a judgment entry granting
appellee's motion for a temporary restraining order. On May 3, 2016, the trial court
magistrate filed a temporary order designating appellee temporary residential parent and
legal custodian of the parties' child, granting appellee exclusive temporary possession of the
Kenwick residence, and requiring appellant to pay appellee child support in the amount of
$884.86 per month. The magistrate also ordered appellant to pay and hold appellee
harmless on the following obligations: mortgage, taxes, and insurance for the Kenwick
residence; automobile insurance for the parties' two vehicles; and monthly cell phone
expenses for the parties and the parties' minor child.
{¶ 4} On July 29, 2016, appellant filed a motion for leave to file his answer and
counterclaim out of rule, a motion for a temporary restraining order, and a motion to
modify temporary orders. On the same date, the trial court granted appellant leave to file
his answer and counterclaim. On September 23, 2016, both parties filed affidavits regarding
appellant's motion to modify temporary orders.
{¶ 5} On November 22, 2016, the magistrate filed an order modifying appellant's
temporary child support obligation. The magistrate also ordered, effective January 15, and
ending on November 1, 2016, appellant to pay appellee temporary spousal support in the
amount of $100 per month. Finally, effective January 15, 2016, the magistrate found
neither party responsible for paying the mortgage, taxes, and insurance on the Kenwick
residence due to insufficient funds. On November 30, 2016, appellee filed a motion to set
aside the magistrate's November 22, 2016 temporary order as to the issue of temporary
spousal support. On January 17, 2017, the trial court held a hearing on appellee's
November 30, 2016 motion to set aside.
{¶ 6} On February 27, 2017, the trial court filed an interim order granting in part
appellee's motion to set aside the magistrate's November 22, 2016 temporary order. The
trial court ordered appellant to pay appellee spousal support in the amount of $575 per
month, ordered appellant to sign a waiver allowing appellee to investigate assuming the
mortgage on the Kenwick residence, and ordered appellee to actively seek employment and
No. 19AP-47 3
provide evidence of her job search at trial. On May 23, 2017, appellant filed a motion for
the court to reconsider its February 27, 2017 interim order.
{¶ 7} On October 5, 2017, appellant filed a motion for exclusive use of the marital
residence. On November 17, 2017, the magistrate filed an order denying appellant's October
5, 2017 motion for exclusive use. On May 7, 2018, appellant filed another motion for
exclusive use of the marital residence.
{¶ 8} Beginning on May 29, 2018, the trial court held proceedings on appellee's
complaint and appellant's answer and counterclaim. On July 16, 2018, appellant filed a
motion to modify temporary orders. On October 18, 2018, appellant filed an affidavit in
support of his May 7, and July 16, 2018 motions. On October 24, 2018, the magistrate
denied appellant's May 7, and July 16, 2018 motions.
{¶ 9} On December 28, 2018, the trial court filed a judgment entry and decree of
divorce.1 The trial court ordered: (1) appellee would have sole legal custody of the parties'
minor child, (2) appellant would pay appellee child support in the amount of $620.78 per
month, and (3) appellant would pay appellee spousal support in the amount of $800.00
per month for 62 months effective January 1, 2019. The trial court also divided the parties'
assets and liabilities.
II. Assignments of Error
{¶ 10} Appellant appeals and assigns the following six errors for our review:
[I.] THE TRIAL COURT ERRED IN ITS CALCULATION OF
THE APPELLEE'S INCOME FOR THE PURPOSES OF CHILD
SUPPORT AND SPOUSAL SUPPORT.
[II.] THE TRIAL COURT ERRED IN ITS CALCULATION OF
THE APPELLANT'S INCOME FOR THE PURPOSES OF
CHILD SUPPORT AND SPOUSAL SUPPORT.
[III.] THE TRIAL COURT ERRED IN FINDING THAT BOTH
PARTIES HAD SHARED LIVING EXPENSES IN WEIGHING
DEVIATION FACTORS FOR CHILD SUPPORT.
[IV.] THE TRIAL COURT ERRED IN ITS DIVISION OF
MARITAL ASSETS AND LIABILITIES.
1 On January 24, 2019, after the notice of appeal was filed, the trial court filed an amendment pursuant to
Civ.R. 60(A) (regarding clerical mistakes) to the December 28, 2018 judgment entry to reflect adoption of the
parenting schedule. The amendment does not substantively affect the assignments of error on appeal.
No. 19AP-47 4
[V.] THE TRIAL COURT ERRED IN AWARDING
DEFENDANT THE MARITAL RESIDENCE CONTINGENT
UPON HIS PAYMENT OF SPOUSAL SUPPORT.
[VI.] THE TRIAL COURT ERRED IN ORDERING
TEMPORARY SPOUSAL SUPPORT IN THE AMOUNT OF
$575.00 PER MONTH AND CHILD SUPPORT IN THE
AMOUNT OF $545.99 PER MONTH.
As appellant's assignments of error contain interrelated arguments, we consider appellant's
assignments of error together and out of order.
III. Child Support
{¶ 11} In his first, second, and third assignments of error, appellant challenges the
trial court's child support order.
A. Applicable Law
{¶ 12} Child support orders are governed by R.C. Chapter 3119.2 " 'The underlying
purpose of Ohio's child support legislation * * * is to meet the current needs of the minor
child.' " Habib v. Shikur, 10th Dist. No. 17AP-735, 2018-Ohio-2955, ¶ 13, quoting Harbour
v. Ridgeway, 10th Dist. No. 04AP-350, 2005-Ohio-2643, ¶ 34. See also Bates v. Bates,
10th Dist. No. 04AP-137, 2005-Ohio-3374, ¶ 21 ("We are mindful that the overriding
concern in calculating child support is the best interest of the child for whom support is
being awarded."). To achieve this purpose, " 'Ohio has adopted what is known as the
"income shares" model for child support—a model that presumes that a child should receive
the same proportion of parental income as he or she would have received if the parents
lived together.' " N.W. v. M.W., 8th Dist. No. 107503, 2019-Ohio-1775, ¶ 17, quoting Phelps
v. Saffian, 8th Dist. No. 103549, 2016-Ohio-5514, ¶ 7. Thus, "[t]he starting point for
determining the proper amount of child support to be paid is parental income." Wolf-
Sabatino v. Sabatino, 10th Dist. No. 12AP-1042, 2014-Ohio-1252, ¶ 7, citing Morrow v.
Becker, 138 Ohio St. 3d 11, 2013-Ohio-4542, ¶ 11.
{¶ 13} R.C. 3119.01, which provides definitions related to the calculation of child
support obligations, defines "income" as either: (1) the gross income of a parent employed
2We note that several statutory sections pertaining to child support, including R.C. 3119.01, 3119.03, 3119.04,
3119.05, 3119.021, 3119.022, 3119.22, and 3119.23 were amended effective March 28, 2019, following the trial
court's judgment in this matter. For purposes of this decision, all references to the above statutory provisions
are to the version in effect at the time of the trial court's judgment.
No. 19AP-47 5
to full capacity, or (2) the sum of the gross income of the parent and any potential income
of an unemployed or underemployed parent. R.C. 3119.01(C)(5). See Bruns v. Green, 10th
Dist. No. 18AP-259, 2019-Ohio-2296, ¶ 23. R.C. 3119.01(C)(7) defines "gross income," in
pertinent part, as follows:
[T]he total of all earned and unearned income from all sources
during a calendar year, whether or not the income is taxable,
and includes income from salaries, wages, overtime pay, and
bonuses to the extent described in division (D) of section
3119.05 of the Revised Code; commissions; royalties; tips;
rents; * * * interest; * * * and all other sources of income.
Among other exceptions, gross income does not include "[n]onrecurring or unsustainable
income or cash flow items." R.C. 3119.01(C)(7)(e). R.C. 3119.01(C)(8) defines
"[n]onrecurring or unsustainable income or cash flow items" as "an income or cash flow
item the parent receives in any year or for any number of years not to exceed three years
that the parent does not expect to continue to receive on a regular basis." By enacting the
above definition of "gross income," the General Assembly "intended for an expansive
definition of gross income for child support purposes." Wolf-Sabatino v. Sabatino, 10th
Dist. No. 10AP-1161, 2011-Ohio-6819, ¶ 91, citing Howell v. Howell, 167 Ohio App. 3d 431,
2006-Ohio-3038, ¶ 50 (2d Dist.), and McQuinn v. McQuinn, 110 Ohio App. 3d 296, 300-01
(12th Dist.1996).
{¶ 14} For a parent who is determined by the court to be voluntarily unemployed or
underemployed, R.C. 3119.01(C)(11) defines "potential income" as including the following:
(a) Imputed income that the court or agency determines the
parent would have earned if fully employed as determined from
the following criteria:
(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;
No. 19AP-47 6
(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.
(b) Imputed income from any nonincome-producing assets of
a parent, as determined from the local passbook savings rate or
another appropriate rate as determined by the court or agency,
not to exceed the rate of interest specified in division (A) of
section 1343.03 of the Revised Code, if the income is
significant.
Thus, the imputation of income involves a two-step process. First, the trial court must
determine that the parent is voluntarily unemployed or underemployed. Tonti v. Tonti,
10th Dist. No. 03AP-494, 2004-Ohio-2529, ¶ 40. Once the court makes such a finding, the
court must then determine the amount of income to impute, based upon the factors in R.C.
3119.01(C)(7). Misra v. Mishra, 10th Dist. No. 17AP-306, 2018-Ohio-5139, ¶ 17.
{¶ 15} R.C. 3119.01(C)(13) defines "[s]elf-generated income" as the following:
[G]ross receipts received by a parent from self-employment,
proprietorship of a business, joint ownership of a partnership
or closely held corporation, and rents minus ordinary and
necessary expenses incurred by the parent in generating the
gross receipts. "Self-generated income" includes expense
reimbursements or in-kind payments received by a parent
from self-employment, the operation of a business, or rents,
including company cars, free housing, reimbursed meals, and
other benefits, if the reimbursements are significant and
reduce personal living expenses.
R.C. 3119.01(C)(9)(a) defines "[o]rdinary and necessary expenses incurred in generating
gross receipts" as "actual cash items expended by the parent or the parent's business and
includes depreciation expenses of business equipment as shown on the books of a business
entity." However, "ordinary and necessary expenses incurred in generating gross receipts"
do not include, except as specifically provided in R.C. 3119.01(C)(9)(a), "depreciation
expenses and other noncash items that are allowed as deductions on any federal tax return
of the parent or the parent's business." R.C. 3119.01(C)(9)(b).
No. 19AP-47 7
{¶ 16} R.C. 3119.05, which provides requirements for the computation of child
support, provides in pertinent part:
When a court computes the amount of child support required
to be paid under a court child support order * * * all of the
following apply:
(A) The parents' current and past income and personal
earnings shall be verified by electronic means or with suitable
documents, including, but not limited to, paystubs, employer
statements, receipts and expense vouchers related to self-
generated income, tax returns, and all supporting
documentation and schedules for the tax returns.
(B) The amount of any pre-existing child support obligation of
a parent under a child support order and the amount of any
court-ordered spousal support actually paid shall be deducted
from the gross income of that parent to the extent that payment
under the child support order or that payment of the court-
ordered spousal support is verified by supporting
documentation.
***
(H) When the court or agency calculates gross income, the
court or agency, when appropriate, may average income over a
reasonable period of years.
{¶ 17} R.C. 3119.021 provides for a basic child support schedule, which a court must
use in calculating the amount of child support to be paid pursuant to a child support order.
Wolf-Sabatino, 2014-Ohio-1252, at ¶ 8. Relatedly, R.C. 3119.022 provides a child support
computation worksheet, which a court also must use in calculating the amount of child
support to be paid. Id. The basic child support schedule and computation worksheet apply
when the parents' combined gross income is between $6,600 and $150,000 per year. R.C.
3119.021; 3119.04. See id.; Johnson v. Johnson, 2d Dist. No. 2018-CA-36, 2019-Ohio-1024,
¶ 53. Nevertheless, pursuant to R.C. 3119.22, a trial court may deviate from the amount of
child support that would otherwise result from the use of the basic child support schedule
and the applicable worksheet if, after considering the factors and criteria set forth in R.C.
3119.23, the court determines the amount calculated would be unjust or inappropriate and
would not be in the best interest of the child. See Lopez-Ruiz v. Botta, 10th Dist. No. 11AP-
577, 2012-Ohio-718, ¶ 11.
No. 19AP-47 8
B. Standard of Review
{¶ 18} A domestic relations court has broad discretion in a divorce proceeding to
determine child support, spousal support, and divisions of marital property. Booth v.
Booth, 44 Ohio St. 3d 142, 144 (1989); Turner v. Turner, 90 Ohio App. 3d 161, 164 (10th
Dist.1993). Where the basic schedule and worksheet apply, the guideline amount is
rebuttably presumed to be the correct amount of child support to be awarded. R.C. 3119.03.
See Wood v. Wood, 10th Dist. No. 10AP-513, 2011-Ohio-679, ¶ 56. "Despite the discretion
a trial court has in child support matters, the court must literally and technically follow the
statutory requirements in all material respects." Wolf-Sabatino, 2011-Ohio-6819, ¶ 88,
citing Marker v. Grimm, 65 Ohio St. 3d 139 (1992), paragraph two of the syllabus.
{¶ 19} Generally, an appellate court will not disturb a domestic relations court's
determination regarding child support absent an abuse of discretion. Wolf-Sabatino, 2014-
Ohio-1252, ¶ 6. An abuse of discretion occurs when a court's judgment is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
C. Analysis
1. Income Averaging
{¶ 20} In his first assignment of error, appellant argues the trial court erred in its
calculation of child support by using an average of appellee's income from a period of three
years. As previously noted, a trial court may, pursuant to R.C. 3119.05(H), utilize income
averaging over a reasonable period of years. Wolf-Sabatino, 2011-Ohio-6819, ¶ 97. We
have found income averaging to be appropriate "where income is unpredictable or
inconsistent." Banchefsky v. Banchefsky, 10th Dist. No. 09AP-1011, 2010-Ohio-4267, ¶ 21.
See also Krone v. Krone, 9th Dist. No. 25450, 2011-Ohio-3196, ¶ 33. " ' "[I]ncome averaging
is appropriate when gross income varies due to circumstances and factors beyond the
parent's control, no matter what the source may be. It is no more 'fair' to penalize a parent
and order much higher child support after an uncommonly good financial year, than it
would be to penalize the child for a parent's temporary decline in income." ' " Maiden v.
Maiden, 11th Dist. No. 2010-L-076, 2011-Ohio-2841, ¶ 17, quoting In re Kohlhorst, 3d Dist.
No. 2-06-09, 2006-Ohio-6481, ¶ 15, quoting Scott G.F. v. Nancy W.S., 6th Dist. No. H-04-
015, 2005-Ohio-2750, ¶ 47. See Hackett v. Hackett, 5th Dist. No. 13CAF010002, 2013-
Ohio-4684, ¶ 28.
No. 19AP-47 9
{¶ 21} A trial court must determine whether income averaging is appropriate on a
case-by-case basis. Dodaro v. Dodaro, 10th Dist. No. 18AP-714, 2019-Ohio-4864, ¶ 38. A
trial court's determination to utilize income averaging pursuant to R.C. 3119.05(H) will not
be overturned on appeal absent an abuse of discretion. Banchefsky at ¶ 18. See McGuire
v. McGuire, 4th Dist. No. 01CA2789 (Mar. 8, 2002) (finding the trial court abused its
discretion by employing income averaging when the evidence established that a party's
earning capacity dropped significantly due to a disabling injury).
{¶ 22} In this matter, the trial court found that, based on appellee's records, she
earned $10,659 in 2016. The trial court found, however, that appellee was able to work at
her current position for "at least 40 hours per week * * * at her regular rate of $9.75 per
hour." Therefore, the court found it was "equitable to impute [to] her * * * an annual rate
of $16,848 for 2016 (pursuant to Ohio minimum wage at that time) and to $20,280 for
2017 and 2018 (pursuant to the pay documentation [appellee] provided)." (Dec. 28, 2018
Decision at 12, fn. 7.) Based on these findings, the trial court averaged appellee's imputed
income from 2016, 2017, and 2018 finding appellee's income to be $19,136 for purposes of
calculating child support.
{¶ 23} The trial court found that appellant, who was "self-employed as an over-the-
road truck driver," earned $29,549.55 over 31 weeks in 2016, which the trial court used to
calculate a weekly average of "roughly $953 per week." Based on its determination that
appellant had not provided a complete assessment of his income from 2016, the trial court
used the weekly average from 2016 to find that appellant's annual income in 2016 was
$49,566.98, or $53,143.63 including his court-ordered child support payments. Next, the
court used "the same analysis with respect to [appellant's] 2017 and 2018 statements, for
which he earned $53,975.91 in 46 weeks and $28,925.78 in 21 weeks respectively," to find
appellant's annual income was $61,016.25 in 2017 and $71,625.74 in 2018. (Dec. 28, 2018
Decision at 12, fn. 8.) Based on these findings, the trial court averaged appellant's annual
income from 2016, 2017, and 2018 finding appellant's income to be $61,929.00 for
purposes of calculating child support.
{¶ 24} Appellant argues it was inappropriate under R.C. 3119.05(H) to utilize a
three-year average for appellee's income because her income "does not fluctuate and is
predictable, albeit imputed." (Appellant's Brief at 9.) In Banchefsky, the appellant argued
No. 19AP-47 10
we had "effectively foreclosed income averaging in cases where income is neither
unpredictable nor inconsistent." Banchefsky at ¶ 21. In dicta, we disagreed, noting a trial
court has considerable discretion in calculating income for purposes of determining child
support, including the use of income averaging under appropriate circumstances.
Nonetheless, because the appellant's income was inconsistent, we held the court did not
abuse its discretion in utilizing income averaging to calculate the appellant's income. Id. at
¶ 23.
{¶ 25} Here, we cannot find the trial court's utilization of income averaging was
inappropriate.3 The trial court averaged both parties' incomes over the same three-year
period, resulting for purposes of calculating child support in a reduction in income for both
parties relative to their most recent year's income. Based on the facts and circumstances in
this case, we cannot find the trial court abused its discretion by utilizing income averaging.
Accordingly, on these grounds, appellant's first assignment of error is overruled in part.
2. Inclusion of Spousal Support in Child Support Calculation
{¶ 26} In his first and second assignments of error, appellant argues the trial court
erred by failing to consider appellant's court-ordered spousal support payments when
performing its child support calculations. Specifically, appellant argues the court failed to
include appellant's court-ordered spousal support payments in appellee's annual gross
income and failed to deduct court-ordered spousal support payments from appellant's
income. As previously noted, pursuant to R.C. 3119.01(C)(7), gross income includes
"spousal support actually received." Furthermore, R.C. 3119.05(B) provides that "[t]he
amount of any pre-existing child support obligation of a parent under a child support order
and the amount of any court-ordered spousal support actually paid shall be deducted from
the gross income of that parent to the extent that payment under the child support order or
that payment of the court-ordered spousal support is verified by supporting
documentation."
{¶ 27} At trial, appellant testified he was currently paying spousal support and
submitted a certified record of his payments from the Franklin County Child Support
Enforcement Agency ("FCCSEA"). The FCCSEA payment record, which was certified on
3 As the assignment of error does not challenge the trial court's utilization of income averaging for appellant,
it is not necessary to address here.
No. 19AP-47 11
August 28, 2018, reflected appellant made spousal support payments totaling $7,062.56 in
2017 and $6,587.44 in 2018. (Defendant's Ex. AA.) In its decision, the trial court found
appellant "has paid interim spousal support in the amount of $100 per month pursuant to
the Magistrate's Order of November 22, 2016," which was effective beginning January 15,
2016. (Dec. 28, 2018 Decision at 14.) Additionally, the trial court noted that it had ordered
on February 27, 2017 the spousal support payments to be increased to $575.00 per month
effective November 1, 2016.
{¶ 28} Despite the trial court's own findings elsewhere in its decision and the
uncontroverted evidence submitted at trial, the trial court failed to consider appellant's
spousal support payments in preparing its child support worksheet. Specifically, the child
support worksheet reflects the trial court did not deduct appellant's spousal support
payments from his income, nor add any spousal support payments to appellee's income.
Because the trial court failed to consider appellant's spousal support payments in its
calculation of the parties' income for purposes of awarding child support, contrary to R.C.
3119.01(C)(7) and 3119.05(B), we find the court committed reversible error. Wolf-Sabatino,
2014-Ohio-1252, ¶ 26 (finding the "trial court abused its discretion by failing to deduct the
amount of spousal support paid from its calculation of appellant's gross income"); Kuper
v. Halbach, 10th Dist. No. 09AP-899, 2010-Ohio-3020, ¶ 69; Warren v. Warren, 10th Dist.
No. 09AP-101, 2009-Ohio-6567, ¶ 30 (finding trial court erred by "fail[ing] to include the
spousal support that appellant pays to appellee in calculating appellee's gross income for
child support purposes"); Pelger v. Pelger, 3d Dist. No. 8-18-36, 2019-Ohio-1280, ¶ 12;
Hagar v. Sabry, 2d Dist. No. 27967, 2018-Ohio-4230, ¶ 20 (finding trial court erred as a
matter of law by failing to account for spousal support award on child support worksheet);
Collins v. Collins, 5th Dist. No. 2008-CA-00028, 2008-Ohio-4993, ¶ 11. Accordingly, on
these grounds, we sustain appellant's first and second assignments of error in part.
3. Self-Employment Income
{¶ 29} In his second assignment of error, appellant asserts the trial court failed to
consider his income as self-employment income for purposes of calculating child support.
When calculating income for purposes of determining child support, federal and state tax
documentation provide a proper starting point, though they are not the sole factor for
consideration. Dannaher v. Newbold, 10th Dist. No. 05AP-172, 2007-Ohio-2936, ¶ 12;
No. 19AP-47 12
Jajola v. Jajola, 8th Dist. No. 83141, 2004-Ohio-370, ¶ 14, citing Foster v. Foster, 150 Ohio
App.3d 298, 2002-Ohio-6390 (12th Dist.). We have previously stated that "[p]articularly
when a parent's income is self-generated, the parent's taxable income may not equal the
parent's income as calculated for child support purposes." Wood at ¶ 42, citing Dannaher
at ¶ 12. Because the purposes underlying taxation policy and Ohio's child support
guidelines are not the same, a trial court cannot "blindly accept all of the expenses deducted
on previous tax returns as ordinary and necessary business expenses incurred in generating
gross receipts" for purposes of calculating self-generated income pursuant to R.C.
3119.01(C)(13). Id., citing Amlin v. Amlin, 2d Dist. No. 2008 CA 15, 2009-Ohio-3010, ¶ 70.
{¶ 30} The deduction of ordinary and necessary business expenses from gross
income " 'recognizes the economic reality that money legitimately expended by a self-
employed parent to make more money is, in fact, not available for child support purposes.' "
(Emphasis sic.) Roubanes v. Roubanes, 10th Dist. No. 13AP-369, 2013-Ohio-5778, ¶ 16,
quoting Helfrich v. Helfrich, 10th Dist. No. 95APF12-1599 (Sept. 17, 1996), citing Kamm v.
Kamm, 67 Ohio St. 3d 174 (1993). " 'A party claiming a business expense has the burden of
providing suitable documentation to establish the expense.' " Dodaro at ¶ 8, quoting
Ockunzzi v. Ockunzzi, 8th Dist. No. 86785, 2006-Ohio-5741, ¶ 53. See Jackowski v.
Jackowski, 10th Dist. No. 13AP-183, 2013-Ohio-5545, ¶ 15.
{¶ 31} Here, as previously noted, the trial court found appellant was "self-employed
as an over-the-road truck driver." (Dec. 28, 2018 Decision at 12, fn. 8.) Appellant also
introduced evidence and testified regarding his work-related expenses. However, the trial
court did not consider appellant's income as self-employment income in the child support
worksheet, or otherwise make any determinations regarding appellant's ordinary and
necessary expenses. Because the trial court failed to follow the statutory provisions for self-
generated income, pursuant to R.C. 3119.01(C)(9) and (13) and 3119.022, it committed an
abuse of discretion. See Wolf-Sabatino, 2011-Ohio-6819, ¶ 88-97. On remand, the trial
court must comply with the statutory requirements, considering any ordinary and
No. 19AP-47 13
necessary business expenses that appellant has met the burden of establishing.4 See
Dannaher at ¶ 137 (remanding matter to the trial court because the court's final entry
conflicted with the child support worksheet). Accordingly, on these grounds, we sustain
appellant's second assignment of error in part.
4. Income Tax Rate
{¶ 32} In his second assignment of error, appellant asserts the trial court erred by
failing to utilize the correct local income tax rate for purposes of calculating appellant's child
support obligation. Specifically, appellant contends the appropriate local tax rate as a
resident of Columbus is 2.5 percent.
{¶ 33} The record reflects both parties submitted proposed child support
worksheets, which were admitted into the record at trial. In both proposed child support
worksheets, the local tax rate was listed at 2 percent for both appellant and appellee. In the
trial court's child support computation worksheet, the local tax rate was listed at 2 percent
for both appellant and appellee.5 In its decision, the trial court found appellant's permanent
residence was in Columbus, Ohio. The trial court made no other findings in its decision
with regard to the local tax rate.
{¶ 34} Columbus City Code 361.19 provides in pertinent part that "there is hereby
levied a tax at the rate of two and one-half (2.5) percent per annum upon the following:
(a) All qualifying wages, commissions and other compensation earned or deemed to be
received by residents of the city." Furthermore, Columbus City Code 361.19 provides that
4 We note appellant has raised additional issues within this assignment of error, including: (1) the trial court's
failure to properly determine appellant's gross receipts and business expenses, and (2) the methodology the
trial court employed regarding consideration of child support payments. The trial court appears to have
determined appellant's income by averaging the amounts reflected on appellant's settlement statements,
records of payments from the company for which appellant performed contracted services, which were
entered into the record as exhibits. However, the trial court's judgment entry is unclear regarding what weight,
if any, the trial court gave to other evidence in the record, including three years of appellant's federal tax
returns, which were also entered into the record. Furthermore, it is unclear what methodology the trial court
employed in its consideration of appellant's court-ordered child support payments. Further, as previously
discussed, the trial court admitted a certified record of appellant's child support payments from FCCSEA. As
we have sustained the assignment of error on other grounds, we decline to address these additional issues.
However, on remand, the trial court should give careful consideration to the same and provide sufficient detail
of its calculations of appellant's gross income in compliance with the pertinent statutory provisions.
Furthermore, we make no determination regarding whether appellant's business expense claims are
sufficiently supported.
5Exhibit N1 is a collection letter for the city of Columbus income tax from 2012 for a joint return. Appellant's
2017 tax return lists his city as Columbus.
No. 19AP-47 14
"[t]he tax upon all of the income specified in paragraph[] (a) * * * shall remain in effect for
the purpose of filing returns and collection of the tax at the rate of * * * two and one-half
(2.5) percent with regard to all income earned on or after October 1, 2009."
{¶ 35} It is unclear from the record, including the parties' proposed child support
worksheets and the trial court's child support worksheet, why the parties proposed a local
tax rate of 2 percent in their worksheets and why the trial court applied a local tax rate of 2
percent. Taking into consideration the parties proposed 2 percent local tax rate in their
worksheets and the fact we have sustained the assignment of error on other grounds, we
decline to address this issue. On remand, the trial court should determine the proper local
tax rate to be applied.
5. Shared Living Expenses
{¶ 36} Finally, in his third assignment of error, appellant asserts the trial court erred
in finding he benefitted from sharing living expenses in determining whether to grant a
deviation from the child support guidelines. R.C. 3119.23(H) allows for a trial court to
consider benefits either parent receives from sharing living expenses with another person
in determining whether to grant a deviation pursuant to R.C. 3119.22. A court is not
required to deviate from the child support guidelines " 'merely because a deviation would
be permissible, or even desirable.' " Weaver v. Weaver, 10th Dist. No. 16AP-743, 2017-
Ohio-4087, ¶ 13, quoting Warzala v. Warzala, 11th Dist. No. 2006-T-0018, 2007-Ohio-
2855, ¶ 26. Thus, " 'there is no bright-line test to determine when a deviation is
warranted.' " Id. at ¶ 11, quoting Morosko v. Willis, 9th Dist. No. 21333, 2003-Ohio-3360,
¶ 18. Absent an abuse of discretion, an appellate court will not reverse a trial court's
decision regarding deviation from the guideline amount of child support. Pauly v. Pauly,
80 Ohio St. 3d 386, 390 (1997); Wood at ¶ 56, citing Roberts v. Roberts, 10th Dist. No.
08AP-27, 2008-Ohio-6121, ¶ 5.
{¶ 37} Here, the trial court found "the amount calculated pursuant to the basic child
support schedule and the applicable worksheet is just, appropriate and serves the best
interest of the minor child." (Dec. 28, 2018 Decision at 13.) In reaching this result, the trial
court found R.C. 3119.23(H) "applies to both parties" because "[appellee] resides with her
No. 19AP-47 15
adult (25-year-old) son, and [appellant] resides with roommate(s)." (Dec. 28, 2018
Decision at 12.)6
{¶ 38} From our review of the record, there was no testimony at trial regarding any
benefit appellant received from sharing living expenses with another person.7 We have
previously stated the " 'crux of R.C. 3119.23(H) is the "benefit" the spouse receives.' " Lopez-
Ruiz at ¶ 35, quoting Cameron v. Cameron, 10th Dist. No. 06AP-793, 2007-Ohio-3994, ¶ 8.
In the absence of any evidence regarding benefits appellant receives from sharing living
expenses, it is unclear why the trial court applied R.C. 3119.23(H) to appellant. Although a
trial court is not required to justify its decision to not order a deviation from the amount
provided by the child support guidelines, its stated application of R.C. 3119.23(H) absent
competent, credible evidence constitutes an abuse of discretion. Weaver at ¶ 14.
Accordingly, on these grounds, we sustain appellant's third assignment of error.
IV. Classification and Division of Marital and Separate Property
{¶ 39} In his fourth and fifth assignments of error, appellant asserts the trial court
erred in its classification and division of the parties' marital and separate property in several
respects.
A. Applicable Law
{¶ 40} In divorce proceedings, the trial court must classify property as marital or
separate property, determine the value of the property, and divide the marital and separate
property equitably between the spouses. R.C. 3105.171(B). See Fernando v. Fernando,
10th Dist. No. 16AP-788, 2017-Ohio-9323, ¶ 17; Hood v. Hood, 10th Dist. No. 09AP-764,
2010-Ohio-3618, ¶ 13. Marital property is defined in pertinent part as:
(i) All real and personal property that currently is owned by
either or both of the spouses * * * and that was acquired by
either or both of the spouses during the marriage;
6 In finding the factor applied to appellee, the trial court pointed to a letter admitted into evidence in which
appellee stated her adult son lived with her and contributed to the household. The trial court pointed to no
similar evidence with respect to appellant.
7The only mention of appellant's roommate in the record is in appellee's affidavit. See Hadinger v. Hadinger,
10th Dist. No. 15AP-09, 2016-Ohio-821, ¶ 35, citing Brubaker v. Ross, 10th Dist. No. 00AP–1159 (Apr. 17,
2001) ("The trial court may take judicial notice of the case file and the affidavits submitted to prepare the final
order."). There was no testimony at trial regarding appellant's roommate. The parties point us to no evidence
of a benefit received by appellant from shared living expenses, and we do not see any such evidence in the
record. Furthermore, appellant appears to be the only signer on his apartment's lease agreement.
No. 19AP-47 16
(ii) All interest that either or both of the spouses currently has
in any real or personal property * * * and that was acquired by
either or both of the spouses during the marriage;
(iii) Except 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[.]
R.C. 3105.171(A)(3)(a). Separate property is defined in pertinent part as "[a]ny real or
personal property or interest in real or personal property that was acquired by one spouse
prior to the date of the marriage." R.C. 3105.171(A)(6)(a)(ii). Furthermore, "[t]he
commingling of separate property with other property of any type does not destroy the
identity of the separate property as separate property, except when the separate property is
not traceable." R.C. 3105.171(A)(6)(b). See Hood v. Hood, 10th Dist. No. 10AP-999, 2011-
Ohio-3704, ¶ 13, quoting Peck v. Peck, 96 Ohio App. 3d 731, 734 (12th Dist.1994) (stating
that "[t]raceability is 'the focus when determining whether separate property has lost its
separate character after being commingled with marital property' ").
{¶ 41} "When parties contest whether an asset is marital or separate property, the
asset is presumed marital property unless proven otherwise." Wolf-Sabatino, 2011-Ohio-
6819, ¶ 11. A party must establish by a preponderance of the evidence that challenged
property is separate. Dunham v. Dunham, 171 Ohio App. 3d 147, 2007-Ohio-1167, ¶ 20
(10th Dist.).
{¶ 42} Upon determining what is marital and separate property, a court must
"divide the marital and separate property equitably between the spouses, in accordance
with this section." R.C. 3105.171(B). A court must distribute a spouse's separate property
to that spouse, except when making a distributive award pursuant to R.C. 3105.171(E) or as
otherwise provided by R.C. 3105.171. R.C. 3105.171(D). See Chahdi v. Elhassan, 10th Dist.
No. 18AP-674, 2019-Ohio-4472, ¶ 12; Wilson v. Wilson-Michelakis, 10th Dist. No. 09AP-
81, 2010-Ohio-370, ¶ 26. "If a court does not disburse a spouse's separate property to that
spouse, the court shall make written findings of fact that explain the factors that it
considered in making its determination that the spouse's separate property should not be
disbursed to that spouse." R.C. 3105.171(D).
No. 19AP-47 17
{¶ 43} In dividing marital property, the court considers the spouses to have
contributed equally to the production and acquisition of marital property and must divide
marital property equally, unless the equal division would be inequitable. R.C.
3105.171(C)(1) and (2). See Neville v. Neville, 99 Ohio St. 3d 275, 2003-Ohio-3624, ¶ 5
(stating that "[i]n any divorce action, the starting point for a trial court's analysis is an equal
division of marital assets"). If an equal division would be inequitable, the court must divide
the property equitably, considering all relevant factors, including those set forth in R.C.
3105.171(F). R.C. 3105.171(C)(1).
{¶ 44} To ensure an equitable division of marital property, a trial court must take
into account both the assets and the liabilities of the spouses. R.C. 3105.171(F)(2). "Thus,
the duty to equitably divide the marital property necessarily obligates the trial court to
divide the marital debt." Wood at ¶ 15. In ordering the division of property, the trial court
must, pursuant to R.C. 3105.171(G), make written findings with sufficient detail to support
its determination that the marital property has been equitably divided. Franklin v.
Franklin, 10th Dist. No. 11AP-713, 2012-Ohio-1814, ¶ 5.
B. Standard of Review
{¶ 45} "We review a trial court's determination of property as marital or separate
under a manifest weight standard, and we will affirm a trial court's determination if it is
supported by some competent, credible evidence." Roush v. Roush, 10th Dist. No. 15AP-
1071, 2017-Ohio-840, ¶ 18, citing Banchefsky at ¶ 36. "Once the domestic court factually
determines whether the property is marital or separate, the court has broad discretion to
make divisions of property." Hood, 2011-Ohio-3704, at ¶ 14, citing Middendorf v.
Middendorf, 82 Ohio St. 3d 397, 401 (1998). We will uphold a trial court's valuation and
division of marital property absent an abuse of discretion. Smoyer v. Smoyer, 10th Dist.
No. 18AP-365, 2019-Ohio-3461, ¶ 24; Fernando at ¶ 25, citing Beagle v. Beagle, 10th Dist.
No. 09AP-353, 2009-Ohio-6570, ¶ 11; Hood, 2010-Ohio-3618, at ¶ 13.
C. Analysis
1. Kenwick Residence
{¶ 46} We begin by considering the arguments raised in appellant's fourth and fifth
assignment of error regarding the Kenwick residence. In its decision, the trial court found
appellant to be the "sole legal owner" of the Kenwick residence, having purchased the
No. 19AP-47 18
residence "prior to the date of marriage on/about May 29, 2002 for the price of $165,000."
(Dec. 28, 2018 Decision at 4.) Contrary to appellee's contention that her earnings were
used to make a down payment on the Kenwick residence, the United States Housing and
Urban Development Settlement Statement offered as evidence for the purchase of the
residence reflected no down payment was made and the transaction was financed in its
entirety. Furthermore, the trial court noted appellee failed to have the Kenwick residence
appraised despite having been instructed to do so prior to trial and having been afforded
two opportunities to present such evidence after trial. Thus, the court found there was no
credible evidence in support of appellee's contentions.
{¶ 47} Evidence appellant submitted at trial from the Office of the Franklin County
Auditor was accepted by the trial court to establish the current fair market value of the
residence as $188,600.00. Additionally, the trial court accepted as credible appellant's
testimony that, in 2005, he refinanced the Kenwick residence, liquidating $32,079.23 in
equity in order to purchase a vehicle for appellee for approximately $12,000.00 and to pay
other marital expenses. The trial court found that, as of the time of trial, neither party had
made any payments on the mortgage since November 2015, and the balance owed by
appellant to the mortgagee, Select Portfolio Servicing, Inc., was $212,750.00. Because
neither party had made payments on the mortgage, the trial court found that any remaining
alleged equity in the Kenwick residence had been extinguished.
{¶ 48} In its decision, the trial court awarded appellant the Kenwick residence "free
and clear from any claim of [appellee]." However, the court also ordered that appellee
"shall have exclusive use of the marital residence until April 30, 2019, provided [appellant]
consistently pays the new spousal support award effected herein to provide [appellee]
sufficient funds to relocate herself and the minor child." (Emphasis sic.) The trial court
provided that "[u]pon satisfaction of this condition precedent, [appellee] is ordered to
vacate the marital residence on/before April 30, 2019" and ordered appellant to "hold
[appellee] harmless from any obligation or liability related to this property." (Emphasis
sic.) (Dec. 28, 2018 Decision at 6.)
{¶ 49} Additionally, the trial court listed the marital assets and liabilities of the
parties in a chart and ordered that "each party shall hold his/her allocation of marital assets
and/or liabilities * * * free and clear from any claim of the other." Under "allocation of
No. 19AP-47 19
marital assets" in the chart, the court allocated the Kenwick residence as appellant's asset,
listing the value of the asset as $188,600. (Dec. 28, 2018 Decision at 10.) Under "allocation
of marital liabilities" in the chart, the court allocated the mortgage obligation on the
Kenwick residence as appellant's sole liability, listing the amount of the liability as
$212,750. (Dec. 28, 2018 Decision at 11.)
{¶ 50} First, in his fourth assignment of error, appellant argues there was no
competent, credible evidence to support the trial court's classification of the Kenwick
residence as marital property. In its decision, the trial court found appellant purchased the
Kenwick residence prior to the date of the marriage. Thus, based on this finding and
pursuant to R.C. 3105.171(A)(6)(a)(ii), the Kenwick residence is appellant's separate
property. Furthermore, the trial court found the value of the Kenwick residence had
increased from the original purchase price of $165,000 to $188,600. However, due to the
parties' continuing lack of payments on the mortgage, the court found any equity in the
property had been extinguished. Based on the mortgage balance of $212,750 as of
August 15, 2018, the court found there was a net liability in the amount of $24,150. Thus,
pursuant to R.C. 3105.171(A)(3)(a)(iii), there was no appreciation during the marriage on
the Kenwick residence as separate property due to the labor, monetary, or in-kind
contribution of the spouses. Therefore, in the absence of competent, credible evidence to
the contrary, we cannot agree with the trial court's classification of the Kenwick residence
as marital property. On remand, the trial court must, consistent with the determination
that the Kenwick residence is appellant's separate property, divide the marital and separate
property equitably between the spouses. Hood, 2010-Ohio-3618, at ¶ 13. Accordingly, on
these grounds, we sustain in part appellant's fourth assignment of error.
{¶ 51} Second, in his fifth assignment of error, appellant asserts the trial court erred
in making the award of the Kenwick residence to appellant contingent on his payment of
spousal support. Having found the Kenwick residence to be appellant's separate property,
appellant's arguments related to making the award of the residence contingent on payment
of spousal support are moot. Accordingly, we find appellant's fifth assignment of error to
be moot.
No. 19AP-47 20
2. Security Reserve Account
{¶ 52} In his fourth assignment of error, appellant asserts the trial court erred with
respect to the security reserve account associated with his truck. At trial, appellant, who
worked as a truck driver, testified he entered into an equipment lease agreement with
Independent Equipment Finance, LLC ("IEF"), for the provision of the truck that he used
for work, a 2006 International 8600 Day Cab.
{¶ 53} In the equipment lease agreement, which was admitted into the record,
appellant agreed to make, in addition to weekly lease payments, weekly deposits into a
maintenance reserve account established and maintained by IEF to provide for
maintenance costs associated with the truck. Appellant also agreed to provide $3,500 to
establish and maintain a security reserve account, which was held by IEF in support of his
obligations under the agreement. At the conclusion of the agreement's term, appellant had
the option to purchase the truck from IEF at an agreed amount of $4,000.
{¶ 54} Appellant testified the equipment lease agreement terminated on May 12,
2018, at which time the reserve accounts were applied to the purchase price of the truck.
Appellant testified he received no funds from the reserve accounts at the end of the lease
term and that the accounts were terminated. Pursuant to court order, appellant provided
an appraisal of the truck, in which its value was listed as $4,850.
{¶ 55} In its decision, the trial court allocated the truck to appellant as a marital
asset, accepting its appraised value of $4,850. In its findings regarding the parties' financial
accounts, the trial court found appellant owned the "Security Reserve Account associated
with the lease-to-own option of the 2006 International 8600 Day Cab in the amount of
$3,500." (Dec. 28, 2018 Decision at 8.) The trial court allocated the security reserve
account to appellant as a marital asset.
{¶ 56} Appellant asserts the trial court erred by listing both the truck and the
security reserve account as marital assets. We agree. In allocating the value of the truck to
appellant, the trial court properly found the truck was marital property. However, this
finding is inconsistent with the trial court's findings regarding the security reserve account.
In his uncontroverted testimony at trial, appellant stated the maintenance and security
reserve accounts had been terminated and their value applied to the purchase price of the
truck. In the absence of competent, credible evidence that funds remained in the security
No. 19AP-47 21
reserve account, it was error for the trial court to allocate the account to appellant in the
amount of $3,500. Accordingly, on these grounds, we sustain in part appellant's fourth
assignment of error.
3. Allocation of Alleged Debts Identified by Appellant
{¶ 57} Next, in his fourth assignment of error, appellant argues the trial court failed
to allocate all marital debts. Specifically, appellant asserts the trial court failed to address
an alleged joint tax debt and alleged liabilities to utilities associated with the Kenwick
residence that accrued while appellee had exclusive possession of the residence. Appellant
points to evidence in the record, including his own testimony, regarding the nature and
existence of such debts. Additionally, appellant identified the debts in an exhibit, which
was admitted at trial, listing his proposed division of marital and separate property.
{¶ 58} On review, we agree with appellant that the trial court failed to make findings
with regard to the alleged debts. We have previously stated that the "characterization of
property as marital or separate is a factual inquiry for the trial court." Taub v. Taub, 10th
Dist. No. 08AP-750, 2009-Ohio-2762, ¶ 15. " '[I]t is well-established that a trial court,
particularly a domestic relations court, is in the best position to resolve disputes of fact, and
assess the "credibility of witnesses" and the weight to be given to their testimony.' " Roush
at ¶ 21, quoting Bates at ¶ 38. See Dodaro at ¶ 30; Wehrle v. Wehrle, 10th Dist. No. 12AP-
386, 2013-Ohio-81, ¶ 45. As the trial court was in the best position to assess the credibility
of the testimony and the weight of the evidence, we decline to make findings with regard to
appellant's contentions in the first instance on appeal. See generally Ocwen Loan
Servicing, LLC v. McBenttes, 9th Dist. No. 29343, 2019-Ohio-4884, ¶ 8-9; Cook v.
ProBuild Holdings, Inc., 10th Dist. No. 13AP-430, 2014-Ohio-3518, ¶ 41. On remand, the
trial court must consider whether the record supports appellant's contentions with regard
to the existence of the alleged debts. If the trial court finds sufficient evidence supports the
existence of the alleged debts, it must classify such debts as marital or separate in nature,
determine the amount of the debts, and consider the debts in dividing the marital and
separate property equitably between the spouses pursuant to R.C. 3105.171. Accordingly,
on these grounds, we sustain in part appellant's fourth assignment of error.
No. 19AP-47 22
4. Appellee's Personal Loan and Credit Card Debt
{¶ 59} Finally, in his fourth assignment of error, appellant argues the trial court
erred by including a personal loan to appellee as a marital debt. In an exhibit admitted at
trial, appellee listed a number of alleged debts which she sought to have classified as marital
debts, including a personal loan from Hana Abebe Belete in the amount of $2,000 and
credit card debt in the amount of $40. In considering appellee's alleged debt to Hana Abebe
Belete, the court noted that appellee "previously testified to obtaining a personal loan in an
unspecified amount from her in-court companion, Seifu Begashaw." The court also noted,
however, that appellee "provide[d] the Court with no testimony or evidence substantiating
the existence or marital nature of this alleged debt." (Dec. 28, 2018 Decision at 9-10, fn. 6.)
With regard to the alleged credit card debt, the court noted that "while this 'debt' appears
on Plaintiff's Exhibit 12, the Court received no testimony or evidence substantiating the
existence or marital nature of this alleged debt." (Dec. 28, 2018 Decision at 9, fn. 5.)
{¶ 60} In the assets and liabilities chart, the court listed appellee's "Hana Abebe
Belete personal loan" under "allocation of marital liabilities," allocating the entire $2,000
liability to appellee. (Dec. 28, 2018 Decision at 10.) The court did not list appellee's credit
card debt. In total, the trial court found appellee had assets in the amount of $15,237 and
liabilities in the amount of $4,064, including the alleged $2,000 personal loan, for a total
net distribution of $11,173. The trial court found appellant had assets in the amount of
$198,663 and liabilities in the amount of $212,750, for a negative total net distribution of
$14,087.
{¶ 61} Appellant argues the trial court improperly included the alleged personal
loan and credit card debt despite the lack of testimony regarding the nature or existence of
such debts. First, after a thorough review of the record, we are unable to find any evidence
in support of the personal loan from Hana Abebe Belete outside of appellee's exhibit listing
the proposed allocation of alleged debts. As noted by the trial court and discussed below,
appellee testified regarding a loan she received from Seifu Begashaw. However, there is no
evidence connecting such loan to the loan listed as "Hana Abebe Belete personal loan" in
the trial court's allocation of marital liabilities. (Dec. 28, 2018 Decision at 10.) Therefore,
in the absence of competent, credible evidence establishing the existence and marital
nature of the alleged personal loan from Hana Abebe Belete, we find the trial court abused
No. 19AP-47 23
its discretion by including such loan in the amount of $2,000 in its allocation of marital
liabilities. Warren at ¶ 15 (finding that "[a] trial court's assignment of an asset's value must
be based upon competent, credible evidence," meaning "evidence that is both competent,
credible evidence of value and a rational basis upon which to establish the value"); Moore
v. Moore, 175 Ohio App. 3d 1, 2008-Ohio-255, ¶ 51 (6th Dist.) (finding reversible error
where no competent, credible evidence supported trial court's conclusion that real estate
was marital property); Ostmann v. Ostmann, 168 Ohio App. 3d 59, 2006-Ohio-3617, ¶ 35
(9th Dist.) (finding trial court erred in determining vehicle to be marital property without
competent, credible evidence).
{¶ 62} Next, with regard to the alleged credit card debt, there is no evidence the trial
court included such debt in its allocation of marital liabilities. Therefore, we find no error
with regard to the credit card debt. Accordingly, on these grounds, we sustain in part and
overrule in part appellant's fourth assignment of error.
V. Temporary Orders
{¶ 63} Finally, in his sixth assignment of error, appellant asserts the trial court erred
in several respects with regard to its February 27, 2017 order providing for temporary
spousal support and child support. First, appellant asserts the February 27, 2017 order
constituted an abuse of discretion because the court failed to consider appellant's spousal
support payments when calculating the child support obligation.
{¶ 64} In the November 22, 2016 order, the magistrate directed, effective
January 15, 2016, appellant to pay temporary child support in the amount of $596.64 per
month, cash medical support in the amount of $82.50 per month, and temporary spousal
support in the amount of $100.00 per month.8 In making child support calculations during
this period from January 15 until November 1, 2016, the magistrate listed appellee as having
no income. In the same order, the magistrate directed, effective November 1, 2016,
appellant to pay ongoing temporary child support in the amount of $545.99 per month,
cash medical support in the amount of $112.00 per month, and removed appellant's
temporary spousal support obligation. In making child support calculations for the period
8We note the magistrate found that neither party had accessible private health insurance available to them at
a reasonable cost. Nevertheless, the magistrate also provided additional calculations in the event private
health insurance was in effect after the effective date of the order.
No. 19AP-47 24
beginning November 1, 2016, the magistrate imputed income to appellee in the amount of
$13,650.00 per year.
{¶ 65} In its February 27, 2017 order, the trial court granted in part appellee's
motion to set aside the magistrate's November 22, 2016 order. The trial court ordered
appellant, effective November 1, 2016, to pay temporary spousal support in the amount of
$575 per month. On May 23, 2017, appellant filed a motion for reconsideration of the
court's February 27, 2017 order, in which he argued that appellee had income in 2016. On
October 5, 2017, and May 7, 2018, appellant filed motions for exclusive use of the Kenwick
residence. On November 17, 2017, the magistrate filed an order denying appellant's
October 5, 2017 motion for exclusive use. In his July 16, 2018 motion to modify temporary
orders, appellant argued appellee should be required to pay the mortgage on the Kenwick
residence because appellant had been approved for a loan modification, appellee had full-
time employment, and appellee had exclusive use of the residence. On October 18, 2018,
appellant filed an affidavit in support of his motion to modify temporary orders. On
October 24, 2018, the magistrate filed an order denying appellant's May 7, and July 16,
2018 motions.
{¶ 66} Civ.R. 75(N) provides for a trial court or magistrate to grant a temporary
order providing spousal support and child support during the pendency of the action for
divorce. Upon the written request of a party, the trial court must hold a hearing to
determine whether to modify the order. Civ.R. 75(N)(2). Importantly, appellant does not
assert he raised before the trial court the issue of including spousal support payments in
the trial court's calculation of temporary child support in his May 23, 2017 motion for
reconsideration, his July 16, 2018 motion to modify temporary orders, or otherwise. A
party that fails to seek modification of a temporary order "cannot raise any issue which
could have been addressed in that order at the final divorce hearing." Galloway v. Khan,
10th Dist. No. 06AP-140, 2006-Ohio-6637, ¶ 14. See Chattree v. Chattree, 8th Dist. No.
99337, 2014-Ohio-489, ¶ 64, quoting Thorp v. Thorp, 11th Dist. No. 2010-T-0038, 2011-
Ohio-1015, ¶ 39 (stating that " '[w]hen a party is able to fully litigate the issues regarding
temporary support orders during the final divorce trial, the trial may constitute the Civ.R.
75(N)(2) hearing on temporary support orders' "); Biscello v. Biscello, 10th Dist. No. 99AP-
No. 19AP-47 25
172 (May 4, 2000). Therefore, we decline to find the trial court abused its discretion with
regard to the calculation of child support in its February 27, 2017 order.
{¶ 67} Appellant also contends the trial court abused its discretion because it issued
its temporary spousal support award after appellee "misrepresented her employment
status" at the hearing on January 17, 2017. (Appellant's Brief at 28.) R.C. 3105.18(B)
provides that "[d]uring the pendency of any divorce, or legal separation proceeding, the
court may award reasonable temporary spousal support to either party." However, the
statute "does not provide, nor have courts provided, a specific methodology in determining
when an award of temporary spousal support is reasonable and how the amount of that
award is to be decided." Ward v. Ward, 10th Dist. No. 99AP-66 (May 4, 2000). See
Bolender v. Bolender, 4th Dist. No. 13CA984, 2014-Ohio-2136, ¶ 27; Deacon v. Deacon,
8th Dist. No. 91609, 2009-Ohio-2491, ¶ 49. "An award of temporary spousal support is
reviewed to determine whether the trial court abused its discretion." Ward, citing Gullia
v. Gullia, 93 Ohio App. 3d 653, 665 (8th Dist.1994).
{¶ 68} In her September 23, 2016 supplemental affidavit, appellee stated she
worked briefly as a maid in 2015, but had not had steady employment since 2003. She also
stated that within one month she planned to start working at a daycare for 25 to 30 hours
per week at the rate of $8.75 per hour. Therefore, appellee "respectfully request[ed] that
the Court not impute me at more than $13,650.00 for purposes of temporary orders."
(Supp. Aff. at 4.) At the January 17, 2017 hearing, appellee's counsel represented to the
court that appellee was unemployed because the daycare had not hired her yet.
{¶ 69} In her 2016 tax return, which was submitted into evidence at trial, appellee's
gross income was listed as $10,659. Appellee also testified at trial that in 2016 she was self-
employed cleaning houses with a friend. Appellee testified she used the money she earned
from cleaning to repay a loan from Seifu Begashaw that she received because she was
having "financial problems." (May 29, 2018 Tr. Vol. I at 122.) Although the record is clear
that appellee received income in 2016, it is unclear as to whether appellee misrepresented
her employment status at the time of the January 17, 2017 hearing. Therefore, we decline
to find the trial court abused its discretion in ordering temporary spousal support. See
generally Stafford v. Stafford, 10th Dist. No. 19AP-50, 2019-Ohio-3742, ¶ 9 (applying
abuse of discretion standard in reviewing spousal support order).
No. 19AP-47 26
{¶ 70} Finally, appellant requests the court reconsider its temporary child support
and spousal support order because appellee resided in the Kenwick residence without
making mortgage payments during the pendency of the proceedings before the trial court.
The record reflects that neither party made mortgage payments after November 2015,
although appellant had been previously ordered to do so until such obligation was set aside
by the magistrate's November 22, 2016 order, in which the magistrate found that neither
party had sufficient funds to make mortgage payments. Based on the foregoing and in
consideration of the evidence in the record, we decline to find the trial court's decision to
allow appellee to remain in the Kenwick residence resulted in an abuse of discretion in its
calculation of temporary child support and spousal support.
{¶ 71} Accordingly, we overrule appellant's sixth assignment of error.
VI. Conclusion
{¶ 72} Having sustained in part and overruled in part the first and fourth
assignments of error, sustained the second and third assignments of error, rendered moot
the fifth assignment of error, and overruled the sixth assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
and remand this matter to that court for further proceedings consistent with law and this
decision.
Judgment reversed;
cause remanded.
SADLER, P.J., and BEATTY BLUNT, J., concur.