Lichtenstein v. Lichtenstein

[Cite as Lichtenstein v. Lichtenstein, 2020-Ohio-5080.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
RYAN LICHTENSTEIN, :
Plaintiff-Appellee, :
No. 108854
v. :
MELISSA LICHTENSTEIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: October 29, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-16-362842
Appearances:
McCarthy Lebit Crystal & Liftman Co., L.P.A., and Richard
A. Rabb, for appellee.
Law Offices of Anne S. Magyaros, L.L.C., and Anne S.
Magyaros, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Melissa Lichtenstein (“wife”), appeals from the
trial court’s judgment sustaining her objections in part and overruling them in part
with respect to issues in the divorce between wife and plaintiff-appellee, Ryan
Lichtenstein (“husband”). Wife raises six assignments of error for our review:
1. The trial court abused its discretion in its determination of child
support.
2. The trial court abused its discretion in finding separate property
interests for husband.
3. The trial court abused its discretion in failing to divide marital debts
and assets equally.
4. The trial court abused its discretion in awarding attorney fees.
5. The trial court erred in terminating temporary orders when there was
no change of circumstances.
6. The trial court erred in denying as moot the appellant’s motion to set
aside magistrate’s order filed on February 19, 2018[,] and appellant’s
motion for modification of support and temporary orders filed on
January 15, 2019 and February 28, 2019.
We find merit to wife’s first, fourth, and sixth assignments of error.
We also find merit in part to wife’s third assignment of error. Wife’s second
assignment of error is overruled, and her fifth assignment of error is premature. We
therefore affirm in part, reverse in part, and remand.
I. Procedural History and Factual Background
Husband and wife were married on June 15, 2012, and had one child
born as issue of their marriage (d.o.b. May 27, 2013). Husband filed for divorce on
July 1, 2016. Wife answered and filed a counterclaim for divorce from husband.
On April 20, 2017, wife filed a motion for temporary support. The
parties entered into an agreed judgment entry where husband agreed to pay wife’s
charges on a credit card up to $665 each month, wife’s car insurance expenses, all
work-related day care expenses for the child, and health insurance premiums for
wife and the child.
The parties entered into a shared parenting plan just before their final
divorce hearing began, where they agreed to have equal parenting time with their
child and make joint decisions on all parenting matters. However, they did not agree
on child support and left that issue for the court to decide.
The magistrate held final hearings on the parties’ divorce and related
matters over a period of four days: December 15, 2017, January 31, February 5, and
February 9, 2018. At the conclusion of trial, the magistrate granted husband’s
motion to modify the temporary support orders in part. The magistrate stated that
“after listening to the evidence presented at trial, [husband’s] motion should be
granted effective immediately as to the $665.00 per month.” The magistrate left the
remaining temporary orders in place. The magistrate’s order was journalized on
February 9, 2018. On February 19, 2018, wife filed a motion to set aside the
magistrate’s order pursuant to Civ.R. 53(D)(2)(b).
The magistrate issued his decision on all remaining matters eight
months later, on October 19, 2018. Wife filed timely objections (and supplemental
objections) to the magistrate’s decision, raising 40 objections.
On January 15, 2019, wife filed a motion to modify the temporary
support orders pursuant to Civ.R. 75(N), alleging that there had been a change in
circumstances since the temporary orders went into effect. Wife filed an amended
motion on February 28, 2019, correcting a mistake that she made in her original
motion.
On July 8, 2019, the trial court sustained wife’s first objection, finding
that the magistrate erred when he forgot to include the list of exhibits that were
admitted into evidence. But the trial court found that it was clear from the
magistrate’s decision that he considered all relevant evidence when making his
decision. The trial court overruled wife’s remaining 39 objections. In the same
judgment entry that overruled wife’s objections, the trial court issued the final
divorce decree, granting the parties a divorce and approving their shared parenting
plan.1
On July 9, 2019, the trial court also denied as moot wife’s motion to
set aside the magistrate’s order terminating the monthly $665 payment towards the
credit card and wife’s motion to modify the temporary support orders.
It is from these judgments that wife now appeals.
II. Child Support
In her first assignment of error, wife argues that the trial court abused
its discretion when it determined child support. She maintains that the trial court
abused its discretion (1) by failing to name husband obligor, (2) in determining
husband’s income, (3) in allocating equal responsibility for the child’s uncovered
1
We find it troubling that the trial court overruled wife’s objections in the same
judgment as the final divorce decree. The parties will likely have to share the final decree
many times in the coming years to prove that they are divorced. We do not believe that
the issues the parties had in their marriage or during the divorce should be a part of the
final divorce decree.
medical expenses, and (4) in allocating the tax benefit of claiming the child to
husband.
When a trial court reviews a magistrate’s decision, it “does not sit in
the same manner as an appellate court; rather, it must conduct an independent
review of the facts and conclusions made by the magistrate.” Haupt v. Haupt, 11th
Dist. Geauga No. 2015-G-0049, 2017-Ohio-2719, ¶ 26, citing Phillips v. Phillips,
2014-Ohio-5439, 25 N.E.3d 371, ¶ 26 (5th Dist). Civ.R. 53(D)(4)(d) provides in
relevant part that “the court shall undertake an independent review as to the
objected matters to ascertain that the magistrate has properly determined the
factual issues and appropriately applied the law.” This “independent review”
requires the court to “‘conduct a de novo review of the facts and an independent
analysis of the issues to reach its own conclusions about the issues in the case.’” In
re I.R.Q., 8th Dist. Cuyahoga No. 105924, 2018-Ohio-292, ¶ 23, quoting Radford v.
Radford, 8th Dist. Cuyahoga Nos. 96267 and 96445, 2011-Ohio-6263, ¶ 13. “The
trial court must decide ‘whether the [magistrate] has properly determined the
factual issues and appropriately applied the law, and where the [magistrate] has
failed to do so, the trial court must substitute its judgment for that of the
[magistrate].’” Gobel v. Rivers, 8th Dist. Cuyahoga No. 94148, 2010-Ohio-4493,
¶ 16, quoting Inman v. Inman, 101 Ohio App. 3d 115, 118, 655 N.E.2d 199 (2d
Dist.1995). It is generally presumed that the trial court properly conducted an
independent review of the magistrate’s decision unless the party asserting the error
affirmatively shows otherwise. Hartt v. Munobe, 67 Ohio St. 3d 3, 7, 615 N.E.2d 617
(1993) (“An appellate court reviewing a lower court’s judgment indulges in a
presumption of regularity of the proceedings below.”).
An appellate court’s standard of review is whether the trial court
abused its discretion in adopting the magistrate’s decision. A trial court’s ruling on
objections to a magistrate’s decision will not be reversed absent an abuse of
discretion. Gobel at id. Further, when reviewing the propriety of a trial court’s
determination in a domestic relations case, an appellate court generally applies an
abuse-of-discretion standard. Gray v. Gray, 8th Dist. Cuyahoga No. 95532, 2011-
Ohio-4091, ¶ 7, citing Booth v. Booth, 44 Ohio St. 3d 142, 144, 541 N.E.2d 1028
(1989).
When reviewing the child support issues in this case, the trial court
did not conduct an independent review of the magistrate’s decision. Instead, the
trial court simply found that “the magistrate was in the best position to weigh the
evidence before him.” The trial court abused its discretion in doing so.
As this court explained in In re R.C., 8th Dist. Cuyahoga No. 96396,
2011-Ohio-4641:
[T]he court must conduct “a de novo review of any issue of fact or law
that a magistrate has determined when an appropriate objection is
timely filed. The trial court may not properly defer to the magistrate in
the exercise of the trial court’s de novo review. The magistrate is a
subordinate officer of the trial court, not an independent officer
performing a separate function.”
Id. at ¶ 11, quoting Knauer v. Keener, 143 Ohio App. 3d 789, 793-794, 758 N.E.2d
1234 (2d Dist.2001).
After reviewing the trial court’s decision on the four child support
issues raised by wife, we find that the trial court improperly deferred to the
magistrate. Although the trial court did not defer to the magistrate on wife’s
objections relating to the allocations of the tax dependency and uncovered medical
expenses, these issues are inextricably intertwined with the remaining child support
issues and, therefore, we cannot reach the merits of them until the trial court
independently addresses all of the child support issues without deference to the
magistrate’s decision.
Accordingly, wife’s first assignment of error is sustained.
III. Separate Property Interests
In her second assignment of error, wife argues that the trial court
erred when it found that husband’s Charles Schwab IRA was his separate property
and that husband had “any separate equity” in the real estate located on Huron
Road.
In determining whether assets are marital or separate, the trial court
is governed by R.C. 3105.171. Marital property generally includes all property
acquired by either party during the marriage as well as the appreciation of separate
property due to the labor, monetary, or in-kind contributions of either party during
the marriage. R.C. 3105.171(A)(3)(a)(i) and (iii). Trial courts must divide marital
property equitably between the spouses. R.C. 3105.171(B). Usually, this requires
that marital property be divided equally. R.C. 3105.171(C)(1). “However, if the trial
court determines that an equal division would produce an inequitable result, it must
divide the property in a way it deems equitable.” O’Rourke v. O’Rourke, 4th Dist.
Scioto No. 08CA3253, 2010-Ohio-1243, ¶ 15; R.C. 3105.171(C)(1).
Marital property does not include separate property. R.C.
3105.171(A)(3)(b). “Property that is acquired during the marriage is presumed to be
marital property unless it can be shown to be separate.” Ockunzzi v. Ockunzzi, 8th
Dist. Cuyahoga No. 86785, 2006-Ohio-5741, ¶ 17. “Separate property” includes all
real and personal property that was acquired by one spouse prior to the marriage
and any “passive income and appreciation acquired from separate property by one
spouse during the marriage.” R.C. 3105.171(A)(6)(a)(ii) and (iii). Separate property
commingled with marital property remains as separate property unless it becomes
no longer traceable. R.C. 3105.171(A)(6)(b). Thus, traceability becomes the focus in
determining whether separate property has lost its character after being
commingled with marital property. Peck v. Peck, 96 Ohio App. 3d 731, 734, 645
N.E.2d 1300 (12th Dist.1994). The party seeking to establish an asset as separate
property has the burden of proof, by a preponderance of the evidence, to trace the
asset as separate property. Hildebrand v. Hildebrand, 5th Dist. Morrow No. 954,
2003-Ohio-3654, ¶ 11, citing Zeefe v. Zeefe, 125 Ohio App. 3d 600, 614, 709 N.E.2d
208 (8th Dist.1998).
Once a trial court has classified the property as either marital or
separate, review of that determination is limited to the standard of manifest weight
of the evidence. Marcum v. Marcum, 116 Ohio App. 3d 606, 612, 688 N.E.2d 1085
(2d Dist.1996). “This standard of review is highly deferential and [only] some
evidence is sufficient to sustain the judgment and prevent a reversal.” Barkley v.
Barkley, 119 Ohio App. 3d 155, 159, 694 N.E.2d 989 (4th Dist.1997).
The manifest weight standard in a civil case is the same as it is in a
criminal case. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d
517, ¶ 17. In Eastley, the Ohio Supreme Court explained:
Weight of the evidence concerns “the inclination of the greater amount
of credible evidence, offered in a trial, to support one side of the issue
rather than the other. It indicates clearly to the [factfinder] that the
party having the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.”
Id. at ¶ 12, quoting State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541
(1997).
When conducting a manifest weight review, this court “weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered.” Thompkins at ¶ 20.
A. Charles Schwab IRA
Wife maintains that the trial court abused its discretion when it
determined that husband met his burden of establishing the Charles Schwab Roth
IRA was his separate property.
Husband testified that he had the IRA prior to the marriage and that
he made no contributions to it during the marriage. He partially corroborated that
testimony with documentation from Charles Schwab showing that the account
existed prior to the marriage and that he did not make contributions to the account
from 2015 through 2017. The documentation showed husband’s IRA account value
as of June 15, 2012, the date the parties got married. The documentation also
showed the year-end statements from 2015 through 2017, which showed that
husband did not make any contributions during those years.
Wife argues, however, that husband failed to submit any
documentation to support his testimony for the years 2012 to 2015. Husband
testified that he tried to get the documents for those years but because Charles
Schwab had changed the accounts, he could not get them. The trial court found
husband’s testimony that he did not contribute to the IRA during the marriage to be
credible with respect to the years for which he did not have documentation.
It is important to remember that a party seeking to establish the
separate property has the burden of proof only by a preponderance of the evidence.
Matic v. Matic, 11th Dist. Geauga No. 2000-G-2266, 2001 Ohio App. LEXIS 3360,
9 (July 27, 2001). “‘Preponderance of the evidence means the greater weight of
evidence that is necessary to destroy the equilibrium.’” Reed v. Reed, 3d Dist. Allen
No. 1-09-63, 2010-Ohio-4550, ¶ 10, quoting State v. Stumpf, 32 Ohio St. 3d 95, 102,
512 N.E.2d 598 (1987). “It is that proof which leads the trier of fact to find that the
existence of the contested fact is more probable than its nonexistence.” Reed at id.
Preponderance of the evidence is a lesser standard than clear and convincing
evidence and beyond a reasonable doubt. See Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus (“Clear and convincing
evidence is that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind
of the trier of facts a firm belief or conviction as to the facts sought to be
established.”).
In Matic, the appellee could only physically document that a portion
of her premarital funds were placed in a joint account to be used as a down payment
on their marital home. The appellant argued that appellee failed to corroborate her
testimony with financial statements showing that her remaining premarital funds
were also placed in the joint account. The Eleventh District found that financial
statements were not the only way that wife could prove that all her premarital funds
were used as a down payment on the parties’ marital residence. Id.
After review, we find that the trial court did not abuse its discretion
when it adopted the magistrate’s decision with respect to the Charles Schwab IRA.
We agree that husband established by a preponderance of the evidence that the IRA
was his separate property. We further note that wife could have subpoenaed the
Charles Schwab records herself to impeach husband’s testimony, but she did not do
so. Thus, we find no merit to wife’s arguments regarding husband’s IRA.
B. Real Estate
Wife argues that the trial court abused its discretion in determining
husband’s separate property interest in the Huron Road property. The trial court
found that the Huron Road property was husband’s separate property and that the
decrease in the principal owed on the mortgage at the time of the marriage
commencement and the principal owed as of December 1, 2017, the marriage
termination, was $10,362.50. The trial court found this amount to be the marital
equity in the property. The trial court therefore awarded wife $5,181.25, for her
share of this equity.
Wife argues that based on the evidence at trial, the equity should have
been $41,346 to $44,984, because husband testified that the current value of the
home was $146,187 and $104,841.18 was owed on the mortgage. Husband testified
that he acquired the property in February 2006, and he submitted a warranty deed
into evidence establishing this fact. He also established that the mortgage owed on
the property as of the date of the marriage was $115,283.13, and that the mortgage
owed as of the termination of the marriage was $104,875.63. Thus, the parties paid
a total of $10,362.50 towards reducing the principal of the mortgage during the
marriage. The trial court further found that wife did not claim or present any
evidence that the home appreciated due to the labor, monetary, or in-kind
contribution of herself or husband.
Wife further argues that husband failed to present any evidence of
equity or value in the Huron Road property at the time of the commencement of the
marriage. She therefore contends that the trial court abused its discretion by finding
that the property was husband’s separate property. We disagree. Husband acquired
the home over six years before the commencement of the marriage. We agree that
to establish the marital equity in property, parties generally present evidence of the
value of the home at the commencement of the marriage and the value of the home
at the termination of the marriage. See Al-Mubarak v. Chraibi, 8th Dist. Cuyahoga
No. 101392, 2015-Ohio-1018, ¶ 50; Kapadia v. Kapadia, 8th Dist. Cuyahoga No.
94456, 2011-Ohio-2255, ¶ 33; Matic, 11th Dist. Geauga No. 2000-G-2266, 2001
Ohio App. LEXIS 3360, at 16. But “[r]igid rules to determine value cannot be
established, as equity depends on the totality of the circumstances.” Baker v. Baker,
83 Ohio App. 3d 700, 702, 615 N.E.2d 699 (9th Dist.1992). We are also cognizant
that a trial court has broad discretion in fashioning an equitable division of marital
property. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 218, 450 N.E.2d 1140 (1983).
After review in this case, we cannot say that the trial court abused its discretion in
valuing the marital equity as the amount the mortgage principal decreased during
the marriage. The marriage was of relatively short duration (approximately four
years). And again, wife did not claim or present any evidence that the home
appreciated due to the labor, monetary, or in-kind contribution of herself or
husband.
Wife further argues that if husband had not refinanced the property
during the pendency of the divorce and rolled over the closing costs into the
mortgage, the amount owed as of the termination of the marriage would have been
$101,211.90 rather than $104,841.18 and thus, the marital equity should have been
$3,629.28 more. Wife testified, however, that she fully consented to the refinancing
of the Huron Road property. Therefore, she cannot claim now that husband
decreased the amount of marital equity by doing so. We find no merit to wife’s
claims about the Huron Road property.
Having found no merit to either issue in wife’s second assignment of
error, we overrule it.
IV. Marital Debts and Assets
In her third assignment of error, wife argues that the trial court
abused its discretion in failing to divide the marital debts and assets equally. She
raises six issues with respect to this assigned error.
A. Retirement Assets
Wife argues that the trial court abused its discretion when it ordered
that a qualified domestic relations order should issue from husband’s 401K for the
exact sum of $19,690.14, rather than allow her to receive the benefits and gains on
that sum until distribution.
The trial court determined that the marital portion of husband’s
retirement account amounted to $51,409.18, and that the marital portion of wife’s
two retirement accounts were $10,517.98 and $1,510.92. From these numbers, the
trial court found that wife was entitled to $19,690.14 from husband’s retirement
account. R.C. 3107.171(A)(3)(a)(ii) states that marital property is the interest that
either spouse currently has in “the retirement benefits of the spouses, and that was
acquired by either or both of the spouses during the marriage.” That is the amount
the trial court awarded wife. Accordingly, we find no merit to wife’s argument.
B. Husband’s Unused Sick and Vacation Time
Wife argues that the trial court abused its discretion when it failed to
find that husband’s accrued sick and vacation time were marital assets. The trial
court found that because husband would not be entitled to compensation for unused
sick time while he was still employed or upon his separation of employment, wife
was not entitled to a monetary award for husband’s unused sick time. Regarding
husband’s unused vacation time, the trial court found that because husband would
not be paid for it until he leaves his employment, that wife was not entitled to an
award for that either.
In Weller v. Weller, 11th Dist. Geauga No. 2001-G-2370, 2002-Ohio-
7125, the Eleventh District explained:
[S]everal Ohio appellate districts have determined that accrued sick
leave benefits resemble deferred bonus payments or pension plan
accumulations and, as such, qualify as an interest in property subject
to division as a marital asset under R.C. 3105.171(A)(3)(a)(ii).
Herrmann v. Herrmann (Nov. 6, 2000), 12th Dist. Nos. CA99-01-006
and CA99-01-011, 2000 Ohio App. LEXIS 5146, *9; Hartley v. Hartley
(Apr. 24, 1998), 2d Dist. No. 16668, 1998 Ohio App. LEXIS 1745, *3-4;
Pearson v. Pearson (May 20, 1997), 10th Dist. No. 96 APF08-1100,
1997 Ohio App. LEXIS 2223, 1997 WL 275496, 8-9. The rationale for
this principle is that “since sick leave benefits, like deferred bonus
payments or pension plan accumulations, are accumulated by the
employee during the employment in exchange for past services
rendered, they are essentially deferred compensation earned during
working years.” Herrmann[,] 2000 Ohio App. LEXIS 5146 at *10.
Hence, if the sick leave benefit is earned by the employee spouse during
the marriage, then it logically belongs to the marital estate.
Id. at ¶ 24. The same rationale applies to accumulated vacation time. Bergman v.
Bergman, 2d Dist. Montgomery No. 25378, 2013-Ohio-715, ¶ 13.
In this case, wife submitted evidence into the record that husband
earns $35.14 per hour and had accrued 495.37 hours of sick time and 185.33 hours
of vacation time. The trial court found, however, that the evidence established that
husband’s employer does not pay employees for “unused sick time either during
employment or upon termination of employment.” If husband is not entitled to
compensation for unused sick time, then there is no marital value to it, and the trial
court did not abuse its discretion regarding unused sick time.
With respect to husband’s unused vacation time, he testified that he
was not aware of any policy where he could “cash out” the unused vacation time
while he was employed with the company. But he agreed that when he separates
from his employer, he will get paid for any unused vacation time. Courts have held
that there is marital value in unused vacation time if a spouse has the right to receive
compensation for the value of it upon termination or retirement. Bergman at id.;
Pearson, 10th Dist. Franklin No. 96APF08-1100, 1997 Ohio App. LEXIS 2223, at
24. Therefore, the trial court in this case abused its discretion when it based its
decision on the fact that husband would not receive compensation for his unused
vacation time until he left his employment. Because husband will be paid for his
unused vacation time when he separates from his employment, wife is entitled to
her share of husband’s vacation time that was accrued during the marriage. Upon
remand, the trial court should determine the value of husband’s unused vacation
time that was accrued during the marriage and award wife her share of that amount.
C. Real Estate and IRA
Wife also argues that the trial court erred when it failed to award her
a portion of the Huron Road property and the Charles Schwab Roth IRA. We
previously addressed these arguments and do not need to repeat them here.
D. Wife’s Marital Debt
Wife maintains that the trial court abused its discretion when it
ordered her to pay her medical debts that she incurred during the marriage.
The trial court ordered that all of husband’s health savings account
($6,628), which was 100% marital, be awarded to wife so that she could pay her
medical debt that equaled $6,101.28. Despite awarding the entire health savings
account to wife, the trial court determined that wife was entitled to $3,314.05 for her
share of it. Because $3,314.04 was husband’s share of the asset, the trial court
ordered that husband’s share of the health savings account be offset against the
portion of marital equity that wife would receive from the Huron Road property.
Wife claims that the result of the offset was that her medical debt ended up being
her separate debt. We disagree. In essence, husband and wife equally paid half of
wife’s medical debt and received half of the health savings account. In doing so, we
find no abuse of discretion on the part of the trial court.
E. Husband’s PNC Account
Wife argues that the trial court erred when it failed to find that
husband depleted the PNC account prior to trial. She maintains that the trial court
should have charged “[h]usband with spending down marital assets prior to trial.”
Wife asserts that the PNC checking account had $14,853.63 in it at
the commencement of the divorce. She points to the fact that husband made
withdrawals for the Horseshoe Casino and other casinos amounting to $6,397.
However, husband testified and submitted evidence documenting his testimony that
from September 2015 until December 2017, wife charged $13,936.94 on husband’s
credit card, which he paid from the PNC account. Husband also established that he
paid for nearly all of the child-care expenses during the pendency of the divorce,
which were approximately $900 per month.
The magistrate found that neither party violated the mutual
restraining orders. The magistrate further found that husband “shouldered a
disproportionate share of the family’s expenses even after separation, to his financial
detriment.” The magistrate explained that husband “generously agreed during 2017
to provide [wife] with a monthly ‘allowance’ as a form of [t]emporary support,
despite the fact that [wife] lives with her parents rent-free, despite the fact the
parties had been separated from each other for nearly two years at that point, and
despite the fact [wife] previously quit a higher-paying job for no apparent, legitimate
reason.” The trial court approved and adopted the magistrate’s decision with
respect to the PNC account. Therefore, we disagree with wife that the trial court
abused its discretion when it did not “charge” husband with “spending down the
marital assets prior to trial.”
However, with respect to the 2016 tax refunds that were deposited
into the PNC account in October 2017, $4,856 from federal and $233 from the state,
we agree with wife that they were marital property subject to division. See Frye v.
Frye, 10th Dist. Franklin No. 93APF09-1218, 1994 Ohio App. LEXIS 1424 (Mar. 31,
1994) (tax refund is a marital asset). Accordingly, upon remand, the trial court
should divide the 2016 tax refunds equitably and award wife her share of them.
F. The 529 College Account
Wife contends that the trial court erred when it failed to equally divide
the College Advantage 529 account that husband opened for the benefit of their
child. Wife’s argument relating to this issue is two sentences. She also cites no
authority in support of her argument. We therefore summarily overrule it.
Wife’s third assignment of error is sustained in part with respect to
husband’s vacation time accrued during the marriage and overruled in part with
respect to all remaining issues.
V. Attorney Fees
In her fourth assignment of error, wife argues that the trial court
erred when it ordered her to pay $3,000 of husband’s attorney fees, which amounted
to a total of $62,055.80. With respect to this issue, the trial court overruled wife’s
objection and found that the magistrate “had wide discretion regarding whether to
award attorney fees and that the [m]agistrate was in the best position to weigh the
evidence before him.”
Just as we found with respect to wife’s first assignment of error, the
trial court abused its discretion when it failed to independently review the
magistrate’s decision with respect to attorney fees. Simply put, the trial court cannot
defer to the magistrate. In re I.R.Q., 8th Dist. Cuyahoga No. 105924, 2018-Ohio-
292, at ¶ 23, quoting Radford, 8th Dist. Cuyahoga Nos. 96267 and 96445, 2011-
Ohio-6263, at ¶ 13.
Accordingly, wife’s fourth assignment of error is sustained.
VI. Temporary Orders
In her fifth assignment of error, wife argues that the trial court erred
when it terminated the temporary orders when there was no change in
circumstances. In her sixth assignment of error, she argues that the trial court erred
when it denied her motion to set aside the magistrate’s order and her motion to
modify temporary support as moot. Wife maintains that the trial court should
reinstate the temporary orders from February 9, 2018, to the date of the final divorce
decree, July 5, 2019. In the alternative, she argues that the trial court should have
granted her motion to modify temporary support.
Temporary orders are subject to appellate review once a final order
has been entered by the court. Millstein v. Millstein, 8th Dist. Cuyahoga Nos. 79617,
79754, 80184, 80185, 80186, 80187, 80188, and 80963, 2002-Ohio-4783, ¶ 28
(temporary support orders become subject to review after the court enters its final
judgment.); Dilacqua v. Dilacqua, 88 Ohio App. 3d 48, 57, 623 N.E.2d 118 (9th
Dist.1993) (“Temporary support orders, like other interlocutory orders, are
reviewable after entry of a final decree disposing of the action in which they were
entered.”).
Husband argues that wife did not preserve this argument because she
did not object to it under Civ.R. 53 when she filed her other objections. But wife
timely filed a motion to set aside the magistrate’s order terminating the $665 per
month, which was 17 months before the trial court issued the final judgment, and
she filed a motion to modify temporary support five months before the final
judgment. Therefore, she preserved the issues relating to temporary support.
The parties entered an agreed judgment entry for temporary support
on July 11, 2017. Husband agreed to pay $665 per month of wife’s charges on a
credit card. Husband also agreed to pay all work-related, child-care expenses,
health-insurance coverage for wife and the child, and wife’s car insurance. In
October 2017, prior to the final divorce trial, husband moved to modify the
temporary support, arguing that he had reason to believe that wife had obtained new
employment since the agreed temporary orders had gone into effect. At the
conclusion of trial, the magistrate heard arguments on husband’s motion and
modified the temporary orders. The magistrate ordered that the $665 payments be
terminated immediately but left the remaining orders intact.
Within ten days of the magistrate’s order terminating the $665
temporary support payments to wife, she filed a motion to set aside the magistrate’s
order pursuant to Civ.R. 53(D)(2)(b), arguing that the magistrate erred when he
granted husband’s motion to modify temporary support because there had not been
a change in circumstances. Wife maintained in her motion to set aside the
magistrate’s order that there had not been a change of circumstances because she
had been working at the same place of employment, earning the same salary, since
the magistrate issued the agreed temporary support order in July 2017.
Wife also filed a motion to modify temporary support pursuant to
Civ.R. 75(N) on January 15 and February 28, 2019, arguing that there had been
several changes since the magistrate’s last order. Specifically, wife contended, inter
alia, that husband’s income had increased, the parties now had “50/50 time sharing
of their child which was not the case at the time of the temporary orders,” work-
related, child-care expenses had decreased significantly, and husband was no longer
paying wife’s health insurance expenses.
Civ.R. 53(D)(2)(b) states:
Any party may file a motion with the court to set aside a magistrate’s
order. The motion shall state the moving party’s reasons with
particularity and shall be filed not later than ten days after the
magistrate’s order is filed. The pendency of a motion to set aside does
not stay the effectiveness of the magistrate’s order, though the
magistrate or the court may by order stay the effectiveness of a
magistrate’s order.
Civ.R. 75(N)(1) provides:
When requested in the complaint, answer, or counterclaim, or by
motion served with the pleading, upon satisfactory proof by affidavit
duly filed with the clerk of the court, the court or magistrate, without
oral hearing and for good cause shown, may grant a temporary order
regarding spousal support to either of the parties for the party’s
sustenance and expenses during the suit and may make a temporary
order regarding the support, maintenance, and allocation of parental
rights and responsibilities for the care of children of the marriage,
whether natural or adopted, during the pendency of the action for
divorce, annulment, or legal separation.
On July 8, 2019, just after it issued the final divorce decree, the trial
court denied wife’s motions to set aside the magistrate’s decision and to modify
temporary support as moot. The trial court explained that all matters were
addressed in the final decree. The issues, however, are whether the temporary
support should have continued from the date of the final divorce hearing (in
February 2018) until the court issued the final divorce decree (in July 2019), and
whether it should have been modified upon wife’s request. The trial court did not
issue the divorce decree until 17 months after the final hearing. Wife received over
$9,000 less in temporary support during this time. Therefore, the matter was not
moot, and the trial court should have addressed wife’s motions.
We therefore sustain wife’s sixth assignment of error and reverse and
remand for the trial court to address wife’s motions regarding temporary support
and to hold a hearing if necessary so that husband and wife can present their
evidence and arguments. However, we find wife’s fifth assignment of error
regarding the merits of the magistrate’s order modifying the temporary support to
be premature because the trial court has not yet addressed this issue.
Judgment affirmed in part and reversed in part. With respect to
wife’s first and fourth assignments of error, this matter is remanded for the trial
court to conduct an independent review of the magistrate’s decision on the matters
of child support and attorney fees. Upon remand, the trial court must also address
the matter of husband’s vacation time; i.e., determine whether any of it was accrued
during the marriage, value it, and equitably divide any marital portion, and address
the issue of the parties’ 2016 tax refunds and equitably divide them. Finally, the trial
court must also address the issue of temporary support that wife raised in her
motions. We also strongly recommend, for the parties’ benefit, that the trial court
issue a new final divorce decree addressing all issues in one judgment and rule on
wife’s objections in a separate judgment.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, domestic relations division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________________
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR