Morrison v. Walters , 2022 Ohio 1740 ( 2022 )

[Cite as Morrison v. Walters, 2022-Ohio-1740.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
LISA A. MORRISON, : APPEAL NO. C-210398
TRIAL NO. DR-2000523
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
FRANK S. WALTERS, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 25, 2022
Zachary D. Smith, LLC, and Zachary D. Smith, for Plaintiff-Appellee,
Cornetet, Meyer, Rush & Stapleton and Karen P. Meyer, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} After nearly a quarter-century of marriage, the parties here decided to
part ways. The trial court accordingly sorted through their finances and assets, issued
a divorce decree, and exercised its discretion to allocate assets and liabilities.
Unsatisfied with this result, defendant-appellant Frank Walters appeals the judgment,
maintaining that the trial court erred in its findings regarding spousal support and
financial misconduct, and that it inequitably divided marital assets. On the record at
hand, however, we find that the trial court properly exercised its discretion, and we
accordingly affirm its judgment.
I.
{¶2} Mr. Walters and plaintiff-appellee Lisa Morrison came to the domestic
relations court seeking a divorce after nearly 25 years of marriage. Throughout their
marriage, the parties accumulated a number of real estate properties, automobiles,
and financial assets. The magistrate sifted through the evidence at two hearings before
setting forth detailed findings of fact and conclusions of law resolving the issues and
divvying up the assets. Mr. Walters timely objected to four of the findings. In short,
Mr. Walters contended that he should have been granted spousal support in light of
the parties differing earning abilities; that Ms. Morrison committed financial
misconduct by gambling and making interest-only payments on a home equity line of
credit; that a brokerage account was divided inequitably; and that Ms. Morrison
should not be removed from the parties’ limited liability holding company until all the
rental properties are sold. After the trial court overruled these objections and entered
a final decree of divorce, Mr. Walters now marshals those same objections before this
court.
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II.
A.
{¶3} In his first assignment of error, Mr. Walters challenges the trial court’s
determination that the parties possess similar earning potential and its concomitant
denial of spousal support. “A trial court has broad discretion in determining whether
an award of spousal support is appropriate and the proper amount of the award. * * *
A decision regarding spousal support will not be reversed on appeal absent an abuse
of discretion.” Reese v. Reese, 2019-Ohio-2810, 139 N.E.3d 1288, ¶ 11 (1st Dist.). Mr.
Walters urges us to find an abuse of discretion in the trial court’s conclusion that he
could find gainful employment in light of uncertainty as to how much he could earn.
On appeal, we will not reverse unless the court exercised its discretionary judgment
over the determination of spousal support in an unwarranted way or committed legal
error. See Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304, ¶ 35.
{¶4} At a hearing on the property division, Mr. Walters testified that he
worked in information technology at Proctor and Gamble for most of his adult life
before accepting a voluntary early retirement package in June 2015 (at approximately
50 years of age). After retirement, Mr. Walters supported himself with income from
the couple’s rental properties and by drawing money from his investment accounts.
Mr. Walters’ income for the three years directly preceding retirement averaged
$127,000 per year; after retirement, his income dropped to approximately $35,000
per year. The parties agreed to sell the rental properties as part of the divorce, thus
depriving Mr. Walters of any income from managing the properties going forward.
{¶5} Ms. Morrison, on the other hand, testified that she declined to retire
completely from her nursing occupation alongside Mr. Walters in 2015. Instead, she
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transitioned to an independent healthcare consulting role with the goal of contracting
for three-to-six month assignments and taking the rest of the year off. Over the last
three years, Ms. Morrison earned an average of $144,000 per year in this capacity.
Against that backdrop, Mr. Walters complains that the record does not substantiate
his ability to earn income comparable to the “substantial income” of Ms. Morrison.
{¶6} While a considerable difference exists in the current incomes of the
parties, “the burden of establishing the need for spousal support rests with the party
that is seeking such support.” Banchefsky v. Banchefsky, 10th Dist. Franklin No.
13AP-300, 2014-Ohio-899, ¶ 28. Prior to his retirement, Mr. Walters earned income
comparable to what Ms. Morrison now makes. In addition to his IT skills, he has
cultivated new skills in property management during his retirement. To counter his
earning potential, Mr. Walters offers little more than speculation. He surmises that
because he has done nothing since retirement to maintain his computer skills from
Proctor and Gamble, his skills are six years out of date, which would make it difficult
to find employment. He guesses that due to a back surgery in 2015, he likely would
not be able to stand or sit for long periods of time—despite the lack of any doctor’s
restrictions from obtaining employment. And even though he managed his own rental
properties for a number of years, he assumes that no company would hire him as a
property manager. These conclusory statements fail to convince us that Mr. Walters
does not have viable, marketable skills that could generate substantial income if he so
desired.
{¶7} In any event, while Mr. Walters narrows in on the court’s finding of
similar earning potential, courts must consider a variety of factors in an award of
spousal support. R.C. 3105.18(C)(1) “sets forth the factors that the trial court must
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OHIO FIRST DISTRICT COURT OF APPEALS
consider in making a spousal-support determination, including, but not limited to, the
parties’ income, earning abilities, ages and conditions, retirement benefits, duration
of the marriage, marital standard of living, and assets and liabilities.” Sherman v.
Sherman, 1st Dist. Hamilton No. C-120691, 2013-Ohio-3501, ¶ 15. In deciding against
an award of spousal support, the trial court explained that it considered testimony
from both parties regarding the various factors before reaching its conclusion to deny
spousal support in this case. The record supports that analysis and subsequent
finding. The trial court accounted for Mr. Walters’ pension from Proctor and Gamble
(which includes healthcare for life at a nominal price), his separate retirement
account, the mortgage-free Colorado Springs home he received, his multiple paid-off
vehicles, and the equity he will receive once the rental properties are sold.
{¶8} Given this settlement, Mr. Walters left the marriage with no debt, ample
financial resources, and assets and skills substantial enough to provide a standard of
living comparable to the one he enjoyed during the marriage. “[E]ach party has the
burden of producing evidence as to any of the R.C. 3105.18(C)(1) factors it wants
considered, and must provide facts tending to prove its version of the manner in which
such factors should be applied.” Hunley v. Hunley, 12th Dist. Clermont No. CA2019-
12-101, 2020-Ohio-5053, ¶ 27. Determinations of earning ability are not limited to
current income, “but may also hold a person accountable for the amount of money the
person could have earned if he or she had made the effort.” Schenck v. Schenck, 12th
Dist. Butler No. CA2012-08-150, 2013-Ohio-991, ¶ 17. Mr. Walters made a conscious
decision to avoid seeking employment, testifying that “I’ve not chose to go back to
work after being retired.” He cannot now complain if the R.C. 3105.18(C)(1) factor
regarding earning ability did not come out quite the way that he wanted, particularly
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when he failed to substantiate his position with adequate evidence. See Rees v. Rees,
3d Dist. Logan No. 8-11-17, 2012-Ohio-2129, ¶ 11. Accordingly, the trial court did not
abuse its discretion in denying Mr. Walters spousal support and we overrule his first
assignment of error.
B.
{¶9} In his second assignment of error, Mr. Walters asserts that the trial
court abused its discretion by not finding that Ms. Morrison’s gambling and interest-
only loan payments constituted financial misconduct, and by failing to factor that
misconduct into the overall financial calculus. Generally, the division of marital
property shall be equal. R.C. 3105.171(C)(1) (“Except as provided in this division or
division (E) of this section, the division of marital property shall be equal.”). However,
R.C. 3105.171(E)(4) authorizes a trial court to fashion a distributive or greater award
of marital property to one spouse upon a finding that the other spouse “has engaged
in financial misconduct, including but not limited to, the dissipation, destruction,
concealment, or fraudulent disposition of assets.” Similarly, R.C. 3105.171(E)(5)
provides for compensation to the offended spouse “[i]f a spouse has substantially and
willfully failed to disclose marital property, separate property, or other assets, debts,
income, or expenses.”
{¶10} Contrary to Mr. Walters’ characterization on appeal, he presented no
evidence that Ms. Morrison engaged in any deceitful conduct to conceal her gambling.
Quite the contrary, Mr. Walters admitted that he accompanied her on sundry
gambling trips to Las Vegas during the marriage. During these excursions, Ms.
Morrison remained at the hotel casino all morning and afternoon to gamble while he
enjoyed other activities outside of the hotel. When Mr. Walters returned to the hotel,
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OHIO FIRST DISTRICT COURT OF APPEALS
he would collect Ms. Morrison from the casino for dinner so they could spend the
evening together before rising and repeating the next day. Mr. Walters might not have
known the exact amount of chips that Ms. Morrison played at the blackjack table (due
to their maintaining separate finances during the entirety of their marriage), but it
cannot be seriously alleged that she hid her gambling habits.
{¶11} Moreover, the case law cited by Mr. Walters in his appellate brief does
not support his stance on appeal. He relies on Putnam v. Putnam, 12th Dist. Clermont
No. CA2008-03-029, 2009-Ohio-97, to bolster his assertion of financial misconduct.
In Putnam, the Twelfth District affirmed a finding of misconduct where the ex-wife
concealed the extent of her gambling losses by withdrawing funds from her own 401(k)
plan, cashing checks from a home equity line of credit, and failing to disclose her
gambling receipts to the IRS. The ex-wife’s gambling was a source of contention
during the marriage in Putnam, and the husband had no knowledge of the gambling
receipts or 401(k) withdrawals until the IRS conducted an audit and forced the
Putnams to file an amended tax return. See Putnam at ¶ 16. “Substantial, undisputed
evidence was introduced at trial demonstrating that [Ms. Putnam] continually
engaged in deceptive practices regarding her gambling.” Id. The same cannot be said
here.
{¶12} Mr. Walters accused Ms. Morrison of shredding her bank statements
before he could review them, but nothing in the record supports that allegation. And
unlike the Putnam case, the gambling wins and losses by Ms. Morrison were properly
recorded on the couple’s jointly-filed tax returns. Ms. Morrison was not incurring or
hiding other outstanding debts, she never withdrew money from the parties’
retirement funds, and the evidence does not suggest that the gambling was a source of
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OHIO FIRST DISTRICT COURT OF APPEALS
friction in the marriage. “Financial misconduct occurs when one spouse engages in
some type of knowing wrongdoing, by which the spouse either profits or intentionally
interferes with the other spouse’s property rights.” Chawla v. Chawla, 10th Dist.
Franklin No. 13AP-399, 2014-Ohio-1188, ¶ 35. Because Mr. Walters failed to
demonstrate deception or wrongdoing (or, frankly, even the actual net amount of
aggregate gains or losses), the trial court did not abuse its discretion by declining to
find financial misconduct due to Ms. Morrison’s gambling.
{¶13} The same result holds true for the home equity line of credit jointly
taken out against the marital home, and Ms. Morrison’s decision to pay interest only
on the loan. Mr. Walters testified that he never inquired about the status of the loan
because “[t]hat was Lisa’s responsibility to manage that.” Mr. Walters may personally
consider her chosen repayment method to be financial misconduct, but neither party
disputed that the loan contained an interest-only payment as an option and Mr.
Walters cited to no authority finding wrongdoing based on spousal disagreement of
loan repayment strategies. Mr. Walters delegated the responsibility of paying the loan
to Ms. Morrison, which she did in accordance with the terms presumably allowed by
the bank. The trial court did not abuse its discretion by refusing to find financial
misconduct on the part of Ms. Morrison regarding the home equity line of credit, and
we accordingly overrule Mr. Walters’ second assignment of error.
C.
{¶14} In his third assignment of error, Mr. Walters suggests that the trial court
erred by dividing a joint brokerage account before he could use the funds to pay his
attorney fees, medical expenses, and appraisal costs for the parties’ marital properties.
As explained above, the trial court should generally divide the marital property equally
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OHIO FIRST DISTRICT COURT OF APPEALS
unless statutory reasons suggest otherwise. Mr. Walters asserted that because he had
substantially less income than Ms. Morrison, he was forced to withdraw assets from
this marital account to pay his ordinary and necessary living expenses. This argument
flounders for various reasons, the first being that he failed to support his appellate
argument by pointing us to specific portions of the record and legal citations to
relevant authority. See App.R. 16(A)(7); see also Ayer v. Morenz-Harbinger, 1st Dist.
Hamilton Nos. C-190687 and C-190716, 2020-Ohio-6861, ¶ 25. This court cannot
discern whether a decision stands contrary to law unless the party making such a claim
informs us of which law the trial court allegedly ran afoul of, and Mr. Walters neglected
to provide the roadmap necessary for meaningful appellate review.
{¶15} Even if we considered the merits of this argument, Mr. Walters’ brief
fails to acknowledge separate property interests of over a half million dollars that
reverted to him before the division of the marital assets. His protestation that the trial
court “forced” him to pay his attorney fees out of a marital brokerage account because
he lacked other funds strains credulity. The trial court did not abuse its discretion by
declining to impose upon Ms. Morrison all of her attorney fees plus half of Mr.
Walters’, and we accordingly overrule the third assignment of error.
{¶16} In his final assignment of error, Mr. Walters argues that the trial court
abused its discretion by ordering him to remove Ms. Morrison’s name from BMLL,
LLC, a marital asset used by the parties as the holding company for their rental
properties. Mr. Walters seemingly believes that removing her name from the business
leaves him solely responsible for liabilities incurred until the sale of the properties,
and leaves Ms. Morrison with all of the proceeds but none of the costs. Here again,
Mr. Walters developed no legal argument in this assignment of error. See App.R.
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16(A)(7). He merely puts forth three sentences concluding that removing Ms.
Morrison’s name from the LLC will insulate her from lawsuits and obligations while
granting her full proceeds. But the trial court’s divorce decree provides that any costs
from selling the properties are to be deducted before proceeds are paid, and that both
parties are responsible for emergency repairs until the properties are sold. We are
unclear what legal inequity Mr. Walters posits and certainly none is apparent from our
review of the record.
* * *
{¶17} In light of the foregoing analysis, we overrule all four of Mr. Walters’
assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
ZAYAS, P. J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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