Rossi v. Rossi , 2014 Ohio 1832 ( 2014 )

[Cite as Rossi v. Rossi, 2014-Ohio-1832.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100133 and 100144
DAVID ROSSI
PLAINTIFF-APPELLEE/
CROSS-APPELLANT
vs.
DAWN M. ROSSI
DEFENDANT-APPELLANT/
CROSS-APPELLEE
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART;
REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-11-334986
BEFORE: Rocco, J., Jones, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: May 1, 2014
ATTORNEY FOR APPELLANT
Margaret E. Stanard
Stanard & Corsi Co., L.P.A.
1370 Ontario St., Suite 748
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Gregory S. Costabile
Gregory S. Costabile, Co., L.P.A.
1300 Fifth Third Center
600 Superior Avenue, East
Cleveland, Ohio 44114
GUARDIAN AD LITEM
John V. Heutsche
John V. Heutsche Co., L.P.A.
Hoyt Block Bldg., Suite 220
700 West St. Clair Avenue
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} In this consolidated appeal, defendant-appellant/cross-appellee Dawn Rossi
(“Dawn”) and plaintiff-appellee/cross-appellant David Rossi (“David”) both appeal from
a judgment entry of divorce that awarded spousal support, child support, and attorney fees
and divided marital debts and assets. Together raising more than twenty assignments of
error, the parties challenge virtually every aspect of the trial court’s decision, including
the amount and duration of spousal support awarded, the division of property, the
termination date of the marriage, the allocation of the parties’ debts and tax liabilities, the
valuation of David’s income and businesses, the amount of child support awarded, and
the award and amount of attorney fees.
{¶2} For the reasons that follow, we affirm the trial court’s judgment in part,
reverse it in part, and remand the case to the trial court for further proceedings consistent
with this opinion.
Factual Background and Procedural History
{¶3} Dawn and David were married on March 24, 1995. Together, they have five
children born May 29, 1995, October 14, 1996, August 23, 2000, October 19, 2002, and
October 5, 2004. After nearly sixteen years of marriage, the couple became estranged
and separated in January 2011. Dawn filed her complaint for legal separation on January
20, 2011. David filed his complaint for divorce a day later. The cases were
consolidated on January 31, 2011.1
{¶4} Along with her complaint, Dawn filed a motion for support pendent lite. On
May 9, 2011, the magistrate entered an order of temporary support, ordering David to pay
spousal support in the amount of $3,500 per month and child support in the amount of
$2,125.93 per month (plus a 2 percent fee), retroactive to January 20, 2011. David was
also ordered to maintain health insurance coverage for Dawn and the children and to pay
most of the expenses for the marital home where Dawn and the children resided, as well
as Dawn’s car payment and insurance, Dawn’s cell phone bill, 90 percent of the
children’s medical bills, any joint credit card bills, and payments on two timeshares the
parties owned while the matter was pending. On August 22, 2011, the parties entered
into an agreed judgment entry, which increased David’s temporary spousal support
obligation to $6,500 per month retroactive to January 20, 2011. Consistent with the prior
temporary support order, David also agreed to maintain health insurance coverage for
Dawn and the children and to pay the mortgage, taxes, insurance, and costs of
landscaping and yard maintenance services, exterminator services, and utilities and
internet services related to the marital home, as well as Dawn’s car payment and auto
insurance, Dawn’s cell phone bill, any joint credit card bills, and the costs of the parties’
1
Dawn filed her complaint for legal separation in Case No. DR-11-334967 on January 20,
2011. David filed his complaint for divorce in Case No. DR-11-334986 on January 21, 2011.
Because service was perfected first in Case No. DR-11-334986, the court consolidated Case No.
DR-11-334967 into Case No. DR-11-334986.
two timeshares while the matter was pending. Under both the May 9, 2011 magistrate’s
order and August 22, 2011 agreed judgment entry (collectively, the “temporary support
orders”), Dawn was required to pay for “any and all of her personal expenses for her and
their children.”
{¶5} In September 2011, Dawn filed a motion for interim attorney fees to defend
the divorce action. The trial court conducted a hearing on the issue, and on January 18,
2012, ordered David to pay $20,000 in interim attorney fees to Dawn’s counsel.
{¶6} At the time of the parties’ marriage, Dawn worked as a manicurist, and David
worked for the Ohio Department of Transportation. Shortly after their marriage, David
started his own company, All-Sweep, Inc. (“All-Sweep”), a business providing sweeping,
plowing, resurfacing, landscaping, gutter cleaning, pressure washing, and other
maintenance services to shopping centers, office buildings, and other commercial
properties. He initially operated the business part-time. In September 2003, after the
business became profitable and provided sufficient income to support his family, David
quit his job with ODOT and operated All-Sweep full time. David thereafter started three
other related businesses, Asphalt Specialists, L.L.C. (“Asphalt Specialists”), NJD
Leasing, L.L.C. (“NJD Leasing”), and Accurate Ground Cover, L.L.C. (“Accurate
Ground Cover”),2 and also made a substantial investment in an entity known as Spiccia &
Rossi Capital Investment (“Spiccia & Rossi”), which holds an interest in two businesses,
2
David is a 100 percent owner of All-Sweep and a part-owner of NJD Leasing, Accurate
Ground Cover, and Asphalt Specialists. Accurate Ground Cover and NJD were out of business at
the time of trial. Asphalt Specialists was dissolved after trial.
RedPipe Industries, L.L.C. (“RedPipe”), a national importer and distributor of a
polypropylene fire protection system, and GreenPipe Industries, L.L.C. (“GreenPipe”), a
wholesaler for a polypropylene potable water piping system and industrial chiller line.
The investment in Spiccia & Rossi was funded by withdrawals from one of the parties’
joint investment accounts and a personal distribution or shareholder loan from All-Sweep,
using funds obtained through All-Sweep’s line of credit.
{¶7} After the birth of their first child, Dawn became a stay-at-home mom, taking
care of the parties’ children and managing their household. Dawn was last employed
outside the home in May 1996. Although Dawn testified that she had enrolled at and had
plans to obtain a nursing degree from Lakeland Community College, she had not begun
taking any courses at the time of trial.
{¶8} After numerous pretrial proceedings, the matter proceeded to trial beginning
on July 31, 2012. Trial occurred on 12 days over a span of several months, concluding
on November 13, 2012.3 The main focus of the trial surrounded the valuation of David’s
businesses and income for purposes of determining an equitable distribution of marital
property, David’s child support obligations, and a reasonable and appropriate award of
spousal support.
{¶9} On June 21, 2013, the trial court issued its judgment entry of divorce,
dividing the parties’ marital assets and liabilities and awarding spousal support, child
3
After several days of trial, the parties entered into an agreed shared parenting plan, adopted
by the court on August 8, 2012, that resolved all issues relating to their children except the issue of
child support.
support, and $35,000 in additional attorney fees to Dawn. 4 The trial court awarded
Dawn spousal support of $12,500 a month for a period of 68 months (with a credit for 22
months of temporary spousal support David had paid since the parties separated) and
$2,000 a month in child support. The trial court equally divided the parties’ interests in
various retirement accounts and personal property, awarded David’s interests in his
companies to him, and awarded the parties’ interest in the family residence and several
investment accounts to Dawn. The trial court also allocated the parties’ credit card and
tax liabilities. To equalize the property division, the trial court ordered David to make a
$201,028 “equalization payment” to Dawn, to be paid over a period of five years.
{¶10} Dawn now brings this timely appeal, raising ten assignments of error for
review. In his cross-appeal, David raises eleven cross-assignments of error for review.
For judicial clarity and ease of discussion, we consider the parties’ assignments of error
and cross-assignments of error out of order and together where appropriate.
Law and Analysis
Standard of Review
{¶11} A trial court “must have discretion to do what is equitable upon the facts and
circumstances of each divorce case.” Deacon v. Deacon, 8th Dist. Cuyahoga No. 91609,
2009-Ohio-2491, ¶ 13, citing Booth v. Booth, 44 Ohio St. 3d 142, 144, 541 N.E.2d 1028
4
We commend the trial court for its opinion in this case. The trial court’s 49-page judgment
entry of divorce is detailed, addresses each issue raised by the parties in a careful and thoughtful
manner, provides a well-reasoned analysis of the applicable facts and law, and clearly identifies the
testimony and documentary evidence supporting its findings.
(1989). We, therefore, review a trial court’s decision in a domestic relations case under
an abuse of discretion standard. Id., citing Holcomb v. Holcomb, 44 Ohio St. 3d 128,
130, 541 N.E.2d 597 (1989). This same standard applies to the trial court’s decisions
relating to awards of spousal and child support and the division of marital property.
Chattree v. Chattree, 8th Dist. Cuyahoga No. 99337, 2014-Ohio-489, ¶ 6, citing Booth at
144; Wright v. Wright, 8th Dist. Cuyahoga No. 91026, 2009-Ohio-128, ¶ 13, citing Booth
at 144. An abuse of discretion connotes more than an error of law or judgment; it
“implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
Division of Marital Property
{¶12} R.C. 3105.171(C)(1) mandates an equal division of marital property, or, “if
an equal division is inequitable, the court must divide the marital property equitably.”
Strauss v. Strauss, 8th Dist. Cuyahoga No. 95377, 2011-Ohio-3831, ¶ 37, citing Neville v.
Neville, 99 Ohio St. 3d 275, 277, 2003-Ohio-3624, 791 N.E.2d 434. In making a division
of marital property and in determining whether to make, and, if so, the amount of any
distributive award, the trial court must consider the factors outlined in R.C. 3105.171(F).
Id. Such factors include, among others: the duration of the marriage; the assets and
liabilities of the spouses; the desirability of awarding the family home, or the right to
reside in the family home for a reasonable period of time, to the spouse with custody of
the children of the marriage; the liquidity of the property to be distributed; the economic
desirability of retaining intact an asset or an interest in an asset; the tax consequences of
the property division; and any retirement benefits of the spouses. R.C.
3105.171(F)(1)-(10). When reviewing a trial court’s division of marital property, we
consider “whether the property division, as a whole, was an abuse of discretion.”
Strauss, 2011-Ohio-3831 at ¶ 35, citing Briganti v. Briganti, 9 Ohio St. 3d 220, 222, 459
N.E.2d 896 (1984).
{¶13} In this case, the trial court stated that there was “no evidence that an equal
division of marital property would be inequitable” and found that an equal division of the
parties’ marital assets was, therefore, appropriate. The trial court separately addressed
each of the factors specified in R.C. 3105.171(F) in setting forth its division of the
parties’ marital property and in ordering payment of a $201,028 distributive award to
Dawn to equalize the division of the parties’ marital assets and liabilities. Competent,
credible evidence supports each of the trial court’s findings under R.C. 3105.171(F).
{¶14} With respect to the trial court’s division of marital property, Dawn claims
that the trial court undervalued David’s interests in several of his businesses and abused
its discretion in accepting David’s expert’s opinion as to the value of All-Sweep. She
also claims that David’s interest in Spiccia & Rossi should have been divided equally
between the parties instead of awarded exclusively to David. David claims that the trial
court applied the wrong marriage termination date in valuing the parties’ martial property,
overvalued his interest in Asphalt Specialists, and abused its discretion in refusing to
permit the introduction of new evidence supporting a change in the valuation of Asphalt
Specialists after the close of trial. David also claims the trial court erred in
characterizing the full value of a Genworth IRA account, into which he had deposited the
proceeds of a deferred compensation account he had maintained when employed by
ODOT, as marital property and in awarding the parties’ full interests in the marital
residence and a Charles Schwab investment account to Dawn. Both parties also
challenge the trial court’s allocation of the parties’ credit card debt and tax liabilities.
We address each of these issues in turn.
Valuation of David’s Businesses
{¶15} In her seventh and eighth assignments of errors, Dawn challenges
the trial court’s valuation of David’s interests in four of his businesses — Accurate
Ground Cover, NJD Leasing, Spiccia & Rossi, and All-Sweep — and the trial court’s
decisions (1) to accept the opinion of David’s expert over the opinion of her expert
regarding the value of All-Sweep and (2) to award the full value of David’s interest in
Spiccia & Rossi to David.
{¶16} Dawn’s seventh and eighth assignments of error state:
VII. The trial court’s refusal to accept the stipulations of the parties as to
the value of three of the business entities was against the manifest weight of
the evidence.
VIII. The trial court’s acceptance of Appellee’s expert’s [fourth] and final
opinion containing a math error which double counted the depletion of
working capital was against the manifest weight of the evidence.
{¶17} The trial court’s valuation of an asset in a divorce case is a question of fact
reviewed under a manifest weight of the evidence standard. See Kapadia v. Kapadia, 8th
Dist. Cuyahoga No. 94456, 2011-Ohio-2255, ¶ 24. Accordingly, an appellate court will
not reverse a trial court’s valuation of an asset if it is supported by some competent,
credible evidence. Id., citing Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 461
N.E.2d 1273 (1984), and Haynes v. Haynes, 8th Dist. Cuyahoga No. 92224,
2009-Ohio-5360. In determining whether competent and credible evidence exists, we
are “‘guided by a presumption that the findings of a trial court are correct, since the trial
judge is best able to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use those observations in weighing the credibility of their testimony.’”
Corwin v. Corwin, 12th Dist. Warren Nos. CA2013-01-005 and CA2013-02-012,
2013-Ohio-3996, ¶ 40, quoting Grow v. Grow, 12th Dist. Butler Nos. CA2010-08-209,
CA2010-08-218, and CA2010-11-301, 2012-Ohio-1680, ¶ 11. Dawn’s claimed errors
regarding the valuation of David’s businesses are meritless.
Valuation of Interests in Accurate Ground Cover, NJD Leasing,
and Spiccia & Rossi
{¶18} With respect to Accurate Ground Cover and NJD Leasing, Dawn contends
that the trial court’s valuation of David’s interests in each of those business at $0 was
against the manifest weight of the evidence because the parties had previously stipulated
that the businesses had values of $37,000 and $8,400, respectively, as of December 31,
2010. David and his accountant testified at trial, however, that these two companies
ceased operations and liquidated their assets in 2012. Based on this uncontroverted
evidence, the trial court reasonably determined that, as of the date of trial, David’s
interests in these companies had zero value. See, e.g., Deacon, 2009-Ohio-2491 at ¶
36-38 (where parties had stipulated to value of marital home as of a year prior to trial,
trial court did not abuse its discretion in considering testimony of real estate appraiser that
the value of the home had declined since the time of the stipulation due to declining real
estate market).
{¶19} With respect to David’s interest in Spiccia & Rossi, Dawn argues that
David’s interest in the company should have been divided equally between the parties and
that the trial court’s valuation of David’s interest in the company at $0 was against the
manifest weight of the evidence. In its judgment entry, the trial court details the facts
and evidence upon which it relied for its $0 valuation of David’s interest in Spiccia &
Rossi, including testimony from David and James Mitchell, co-owner and managing
partner of RedPipe and GreenPipe, the two companies in which Spiccia & Rossi has
invested, regarding the lack of profitability and lack of future business prospects for the
companies, due, in large part, to Underwriters Laboratories’ denial of certification for one
of companies’ primary products and the fact that the German manufacturer of the product
sold by RedPipe had placed the company on probation for failing to meet sales
commitments. The trial court determined that this testimony, combined with evidence
that (1) any profits that might be received in the future would be committed to repayment
of loans obtained by All-Sweep to fund the investment and (2) if the loans were not
repaid, David would have to declare the loans as personal income, resulting in substantial
tax liability, warranted awarding David’s interest in Spiccia & Rossi to him at zero value.
{¶20} Upon a review of the record, we find that competent, credible evidence
supports the trial court’s valuation of David’s interests in Accurate Ground Cover, NJD
Leasing, and Spiccia & Rossi at $0 and that, under the circumstances, the trial court’s
award of David’s interest in Spiccia & Rossi entirely to him, rather than dividing it
between the parties, was reasonable and not an abuse of discretion.
Valuation of All-Sweep
{¶21} With respect to the valuation of All-Sweep, the parties offered two
competing experts with substantially different opinions as to the valuation of All-Sweep.
Although both experts used the capitalization of earnings method 5 in valuing the
business, David’s expert, Charles Cuini, CPA, CVA (“Cuini”) opined that the fair market
value of All-Sweep was $690,000, and Dawn’s expert, Terri Lastovka, CPA, JD, ASA
(“Lastovka”), opined that the fair market value of the company was $1,513,000. In its
judgment entry, the trial court provided a comprehensive summary of the experts’
disparate approaches to valuing the company and explained in detail why it found Cuini’s
valuation, after “thoroughly review[ing] the [experts’] reports (6 in all), supporting
calculations, trial exhibits, and testimony” for “many hours and days,” to be “the more
convincing opinion as to All-Sweep’s value.”
{¶22} In ascertaining the value of a business, a trial court has discretion to weigh
the testimony offered by the parties’ valuation experts. Gentile v. Gentile, 8th Dist.
5
Under the capitalization of earnings method, the value of a business is determined by
calculating the present value of the cash flows or profits expected to be generated by the business in
the future.
Cuyahoga No. 97971, 2013-Ohio-1338, ¶ 62, citing Bryan v. Bryan, 8th Dist. Cuyahoga
No. 97817, 2012-Ohio-3691. “On appeal, our duty is not to require the adoption of any
particular method of valuation, but to determine whether, based upon all the relevant facts
and circumstances, the court abused its discretion in arriving at a value.” Gentile at ¶ 63,
citing Focke v. Focke, 83 Ohio App. 3d 552, 615 N.E.2d 327 (2d Dist.1992), and James v.
James, 101 Ohio App. 3d 668, 656 N.E.2d 399 (1st Dist.1995).
{¶23} Based upon our review of the record, we find there is competent, credible
evidence supporting the trial court’s determination that Cuini’s valuation was a more
accurate valuation of All–Sweep. Whereas Cuini interviewed David twice as part of his
valuation process to obtain information regarding his business practices, contracts, and
revenues, Lastovka never interviewed David, an omission that she acknowledged in her
reports was “not in accordance with Uniform Standards of Professional Appraisal
Practice.” Whereas Cuini reconciled the company’s records with IRS filings to adjust
the company’s net income figures for personal expenses paid by the company, the trial
court found that Lastovka employed a “highly subjective process” to adjust the
company’s net earnings for personal expenses based on her assumptions regarding what
expenses were “personal.” Whereas Cuini used a simple average of net cash flow in
valuing the company, Lastovka used a weighted average (resulting in a much higher
valuation of the company), claiming that increased revenues in 2011 and 2012 were more
indicative of the company’s future performance than its past earnings, even though only
six months of 2012 earnings were available at the time of trial.
{¶24} We cannot say that the trial court abused its discretion in accepting Cuini’s
opinion regarding the valuation of All-Sweep and or that the valuation of All-Sweep at
$690,000 was against the manifest weight of the evidence. Accordingly, Dawn’s
seventh and eighth assignments of error are overruled.
Marriage Termination Date
{¶25} In his second cross-assignment of error, David contends that the trial court
abused its discretion in selecting July 31, 2012, the date of commencement of the final
hearing, as the date of termination of the parties’ marriage for purposes of valuing the
parties’ marital assets.
{¶26} David’s second cross-assignment of error states:
II. The trial court erred and abused its discretion by failing to apply the
date of the court’s decision as the termination date of the marriage.
{¶27} David argues that due to “the cyclical nature of the economy, stock market,
and real estate market,” the “appropriate date” for termination of the marriage should
have been June 21, 2013, the date of the trial court’s judgment entry, because “selecting a
date to value assets nearly one year earlier than the final decision will not result in an
equitable allocation of property.” We disagree.
{¶28} Pursuant to R.C. 3105.171(A)(2), the date of the final hearing for divorce is
presumed to be the appropriate termination date of the marriage in dividing marital
property unless the trial court determines that use of that date would be inequitable.
David has not identified any basis upon which use of the final hearing date as the
marriage termination date in this case would be inequitable.
{¶29} Because the value of an asset may change over time, the court must select
a date as of which to value marital assets. The parties stipulated to the values of the
parties’ interests in the marital residence and the Schwab account as of May 10, 2012 and
July 23, 2012, respectively. No evidence was presented that the values of these assets
had changed as of the date of commencement of the divorce hearing. Accordingly, the
trial court used the parties’ stipulated values in determining the proper distribution to be
made of those marital assets. Simply because the value of assets may change between
the time the divorce hearing is commenced and the time a final judgment is entered does
not make it inequitable to use the final hearing date as the marriage termination date in
valuing marital assets. David has cited no authority supporting the use of the date of the
final judgment entry as the marriage termination date under such circumstances.
{¶30} Moreover, use of the date of final judgment as the marriage termination date
in valuing and distributing marital property would be virtually unworkable. Evidence of
the value of the parties’ marital assets and liabilities must be provided before the trial
court can make a property distribution. Use of David’s proposed marriage termination
date would require the parties, during the divorce hearing, to guess when the final
judgment of divorce might be entered and then speculate as to what the value of the
parties’ marital assets and liabilities might be as of that uncertain date in the future.
{¶31} We find no abuse of discretion in the trial court’s selection of the date of
commencement of the final divorce hearing as the marriage termination date. David’s
second cross-assignment of error is overruled.
New Evidence Regarding the Valuation of Asphalt Specialists
{¶32} In his seventh cross-assignment of error, David contends that the trial court
abused its discretion in denying his motion for consideration of supplemental evidence
relating to his interest in Asphalt Specialists.
{¶33} David’s seventh cross-assignment of error states:
VII. The trial court erred and abused its discretion by denying
appellee/cross-appellant’s motion to hear new evidence.
{¶34} David filed his motion for consideration of supplemental evidence on June
7, 2013. He sought to introduce evidence that, six months after the trial had concluded,
Asphalt Specialists had dissolved, such that his interest in the company now had a value
of $0, rather than $43,000, as the parties had previously stipulated. The trial court denied
David’s motion, explaining that the trial court had valued the parties’ assets as of the date
of commencement of the final divorce hearing — at which time it was undisputed the
value of David’s interest in Asphalt Specialists was $43,000 — and would not reopen the
matter for presentation of new evidence relating to events that post-dated the hearing
because to do so “would prevent finality.” We agree.
{¶35} Many assets change value over time. If a trial court was required to
consider new evidence every time an asset increased or decreased in value between the
date of trial and the date the trial court issued its decision, litigation over valuation issues
could continue indefinitely. Accordingly, we find no abuse of discretion in the trial
court’s denial of David’s motion for consideration of supplemental evidence. David’s
seventh cross-assignment of error is overruled.
Marital Residence and Charles Schwab Account
{¶36} David’s eighth and ninth cross-assignments of error state:
VIII. The trial court erred and abused its discretion by failing to equitably
divide the parties’ Charles Schwab account.
IX. The trial court erred and abused its discretion by awarding the marital
residence to appellant as said decision was against the manifest weight of
the evidence.
{¶37} In his eighth and ninth cross-assignments of error, David challenges the trial
court’s award of the parties’ entire interest in the marital residence and the Charles
Schwab investment account to Dawn, rather than equally dividing the parties’ interests in
the assets between them, on the ground that “both assets are highly cyclical [and] will
have continued to steadily increase in value.” David also argues that the trial court
abused its discretion in awarding the marital residence to Dawn rather than to him given
that he has a liberal visitation schedule with his children and that Dawn dislikes his
brother, who lives next door. David’s arguments are meritless.
{¶38} The trial court determined that Dawn should be awarded the marital home
because she is the primary caretaker of the parties’ five children, the children are
accustomed to living at the home and attending Mayfield Schools, and Dawn and the
children require a home the size of the marital residence. The trial court’s findings are
supported by competent, credible evidence in the record.
{¶39} Further, the parties agreed that David should be awarded his full interest in
All-Sweep as part of the property distribution. Because David was awarded his full
interest in All-Sweep, valued at $690,000, the trial court appropriately awarded other of
the parties’ marital assets, including the parties’ Charles Schwab investment account and
the parties’ interest in the marital residence, to Dawn. As discussed above, the fact that
certain marital assets awarded a party may increase or decrease in value between the time
trial commences (as of which time the assets are valued) and the time of the final
judgment of divorce does not render the property distribution unfair or inequitable. The
trial court did not abuse its discretion in awarding the marital residence and Charles
Schwab account to Dawn. David’s eighth and ninth cross-assignments of error are
overruled.
The Genworth IRA Account
{¶40} David’s first cross-assignment of error states:
I. The trial court erred and abused its discretion by failing to award
appellee/cross-appellant with his separate interest in the Genworth Deferred
Compensation Fund.
{¶41} In his first cross-assignment of error, David claims that the trial court
abused its discretion by failing to award him his separate interest in a Genworth IRA
account into which David had deposited the proceeds of a deferred compensation account
he had maintained when employed by ODOT. David claims that because he contributed
to the account for over 21 years, and the parties were married for only 8½ years of that
time, 60 percent of the account should be considered David’s separate property.
{¶42} A trial court’s characterization of property as marital or separate property is
a mixed question of law and fact and will not be reversed unless it is against the manifest
weight of the evidence. Williams v. Williams, 8th Dist. Cuyahoga No. 95346,
2011-Ohio-939, ¶ 8, citing Torres v. Torres, 8th Dist. Cuyahoga Nos. 88582 and 88660,
2007-Ohio-4443, ¶ 14. Once property is characterized as marital or separate property,
the distribution of that property will not be disturbed absent an abuse of discretion.
Williams at ¶ 8, citing Larkey v. Larkey, 8th Dist. Cuyahoga No. 74765, 1999 Ohio App.
LEXIS 5174 (Nov. 4, 1999). Marital property includes “[a]ll real and personal property
that currently is owned by either or both of the spouses, including, but not limited to, the
retirement benefits of the spouses, and that was acquired by either or both of the spouses
during the marriage.” R.C. 3105.171(A)(3)(a)(i). Separate property includes “[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).
{¶43} A party asserting that an asset is separate property has the burden of
proving that claim by a preponderance of the evidence. Hall v. Hall, 2d Dist. Greene No.
2013 CA 15, 2013-Ohio-3758, ¶ 14, citing Peck v. Peck, 96 Ohio App. 3d 731, 734, 645
N.E.2d 1300 (12th Dist.1994). If separate property has been commingled with marital
property, i.e., put together into a common fund, the party seeking to have an asset treated
as separate property must also prove by a preponderance of the evidence that the property
can be traced to its prior separate identity. Strauss, 2011-Ohio-3831 at ¶ 49, citing
Williams at ¶ 10; see also R.C. 3105.171(A)(6)(b).
{¶44} David testified that when he left ODOT in 2003, he had $95,000 in a
deferred compensation account and that he “rolled over” that amount into the Genworth
IRA, which he opened in January 2004. The value of the Genworth IRA as of the time
of trial was $147,725. David testified, however, that he did not know, and had no
documentation showing, the balance of his deferred compensation account at the time of
the parties’ marriage. Nor did he offer any evidence regarding the history of payments
made to the deferred compensation account before or during the marriage. Because
David offered no evidence as to what portion of the $95,000 in the deferred compensation
account was premarital (i.e., contributions made prior to March 24, 1995) as opposed to
marital (i.e., contributions made on or after March 24, 1995), the trial court found that
David “failed to meet his burden of proving not only the amount of his premarital portion
of the Deferred Compensation Account in the Genworth IRA, but also that the premarital
portion retained its separate identity.” The trial court held, therefore, that the full
amount of the Genworth IRA account was marital property.
{¶45} Based on the foregoing, we find no error in the trial court’s characterization
of the Genworth IRA (in its entirety) as marital property. See, e.g., Deacon,
2009-Ohio-2491 at ¶ 43-46 (where husband failed to present any documentation to
support self-serving testimony that one-third of annuity was separate property, “trial court
was free to disbelieve” his testimony). David’s first cross-assignment of error is
overruled.
Credit Against Temporary Support Arrearages for David’s Payment of the
Children’s Expenses
{¶46} Dawn’s third and fourth assignments of error state:
III. The trial court erred and abused its discretion in giving Appellee a
credit against his support arrearage for expenses incurred on behalf of the
children and charged on Appellee’s credit card which was then also divided
as marital debt.
IV. The trial court erred and abused its discretion by giving Appellee
credit for “gifts” to the children without any supporting documentation and
in contravention of the temporary support order.
{¶47} David’s fourth cross-assignment of error states, in relevant part:
IV. The trial court erred and abused its discretion by wrongly interpreting
Exhibit 99 * * *.6
{¶48} At the time of trial, David owed $45,477.45 in support arrearages due to
the retroactivity of the May 9, 2011 and August 22, 2011 temporary support orders.
David argued that he was entitled to a credit of $27,999.92 against those arrearages for
expenses he paid on behalf of the parties’ children, which he claimed Dawn was required
6
David’s fourth cross-assignment of error states in full: “The trial court erred and abused its
discretion by wrongly interpreting Exhibit 99 and offsetting the parties[’] 2011 and 2012 tax liability
with the arrearage balance resulting in an inequitable allocation of property.” Because this
cross-assignment of error involves two very different issues, we address the portion of David’s fourth
cross-assignment of error that relates to the award of a credit against support arrearages here and
address the portion of that cross-assignment of error that relates to the allocation of tax liabilities in
the section that addresses that issue.
to pay under the temporary support orders. The trial court found that $13,224.63 of the
$27,999.92 in expenses claimed by David were personal expenses of the children Dawn
was obligated to pay under the temporary support orders. Accordingly, the trial court
awarded David a credit of $13,224.63 against his support arrearages for these expenses.
{¶49} In support of his request for a credit against arrearages, David introduced a
printout or summary of accounts from All-Sweep, itemizing the checks written from
All-Sweep’s account (including the payor, date, and amount) for the payment of expenses
on behalf of the children, which David claimed were Dawn’s obligation. Dawn did not
object to the admissibility of this document at trial. David also testified regarding what
the expenditures were for.
{¶50} In her third and fourth assignments of error, Dawn claims that the trial
court erred in granting David a $13,224.63 credit against support arrearages because
David failed to present documentation supporting the “summary” of expenses he claimed
to have paid on behalf of the children and presented insufficient evidence that the
expenditures he made for the children were “necessary” expenditures Dawn was required
to pay for as opposed to “gifts” from David to the children.
{¶51} In his fourth cross-assignment of error, David argues that the trial court
“wrongly interpreted” the printout of expenditures he claimed to have made on behalf of
the parties’ children and should have provided an additional offset against support
arrearages for all of his son’s car payments (totaling $9,683.90), his son’s car insurance
payments (totaling $2,591.89), and “medical non-covered expenses for the children and
for Dawn” (totaling $2,499.50) that he paid. David claims that he is entitled to a total
credit against arrearages of $27,999.92 rather than the $13,224.63 ordered by the court.
{¶52} Under R.C. 3121.45, the payment of money directly to a child who is
subject to a support order is deemed a gift, not a support payment. 7 A similar rule
applies to expenditures made on behalf of a child outside a child support order. See, e.g.,
Hurley v. Austin, 8th Dist. Cuyahoga No. 99992, 2013-Ohio-5592, ¶ 29 (payments made
to school on behalf of the children or to mother directly after the issuance of temporary
support order “were appropriately treated as gifts”); State v. Ferguson, 10th Dist. Franklin
No. 12AP-282, 2012-Ohio-6231, ¶ 14 (“Unless made to satisfy another obligation, the
payment of monies and buying of items or providing financial assistance directly to the
child instead of the child support enforcement agency is by law deemed a gift and not
child support.”); Ruark v. Smith, 10th Dist. Franklin No. 04-AP-1018, 2005-Ohio-3370, ¶
9-10 (payments for clothes and school lunches were gifts under R.C. 3121.45); see also In
re Custody of Harris, 2d Dist. Champaign No. 2005-CA-27, 2006-Ohio-3746, ¶ 27
(interpreting predecessor statute, R.C. 2301.36(A), “to mean that monies spent on
additional purchases and items other than child support are presumed gratuitous”); Spier
7
R.C. 3121.45 provides, in relevant part:
Any payment of money by the person responsible for the support payments under a
support order to the person entitled to receive the support payments that is not made to
the office of child support, or to the child support enforcement agency administering
the support order * * * shall not be considered a payment of support under the support
order and, unless the payment is made to discharge an obligation other than support,
shall be deemed to be a gift. (Emphasis added.)
v. Spier, 7th Dist. Mahoning No. 05 MA 26, 2006-Ohio-1289, ¶ 27-32 (trial court has
discretion to credit in-kind payments made while divorce is pending toward support
arrearage where presumption that payment was a gift is rebutted).
{¶53} In this case, the $13,224.63 in expenditures the trial court credited against
the temporary support arrearages due Dawn included charges for new iPhones, cell phone
expenses, iTunes downloads, myschoolaccount.com charges, and expenses for uniforms,
sports equipment, and extracurricular activities. The expenditures were apparently
made from January 24, 2011 to June 16, 2012 (both prior to and after issuance of the
temporary support orders). David presented no evidence that any of these expenditures
on behalf of his children were intended as anything other than gifts.
{¶54} Under the May 9, 2011 and August 22, 2011 temporary support orders,
Dawn was required to pay for “any and all of her personal expenses for her and their
children.” (Emphasis added.) There was no evidence that the expenditures for which
David sought a credit against support arrearages included any of Dawn’s expenses for her
and their children. There is nothing in the temporary support orders that obligated Dawn
to reimburse David for any “gifts” he gave to the children or any other expenditures
David chose to make on behalf of the children during the time they were with him.
{¶55} Since there was no evidence that David’s expenditures on behalf of his
children were intended to satisfy his support obligation or any other obligation to Dawn
or the children, they must be regarded as gifts and, as such, were improperly credited
against the support arrearages due Dawn. Accordingly, Dawn’s third and fourth
assignments of error are sustained.
{¶56} With respect to David’s fourth cross-assignment of error, we find no error in
the trial court’s refusal to provide a credit against support arrearages for amounts David
paid for his son’s car payments, his son’s car insurance payments, and “medical
non-covered expenses for the children and for Dawn.” As the trial court explained,
David presented no evidence that he paid more than his share of the medical expenses he
was required to pay under the temporary support orders, and there was nothing in the
temporary support orders relating to payment of his son’s car expenses. Further, David
testified that until shortly before trial, the vehicle his son was driving was listed on
All-Sweep’s financial statements as a company vehicle. Accordingly, David’s fourth
cross-assignment of error is overruled to the extent it relates to David’s request for credits
against arrearages.
Allocation of Marital Debt and Liabilities
{¶57} The parties also challenge the trial court’s allocation of their debts and
liabilities.
Allocation of Credit Card Debt
{¶58} Dawn’s first and second assignments of error state:
I. The trial court erred and abused its discretion when it divided the
post-filing debt incurred by the Appellee as a marital debt because that had
the effect of nullifying the trial court’s temporary orders and resulted in an
unequal division of property.
II. The trial court erred and abused its discretion in negating its prior
orders regarding interim attorney fees by later “dividing” those same fee
charges on Appellee’s credit card as marital debt.
{¶59} David’s sixth cross-assignment of error states:
VI. The trial court erred and abused its discretion by failing to equalize the
debt allocation of the parties against the manifest weight of the evidence.
{¶60} In her first and second assignments of error, Dawn argues that the trial court
abused its discretion in characterizing $16,441.58 in post-divorce filing credit card debt
on credit cards in Dawn’s name and $37,195.96 in post-divorce filing credit card debt on
credit cards in David’s name as “marital debt,” claiming that it had the effect of
“nullifying” the trial court’s temporary support orders and interim attorney fee award and
resulted in an inequitable division of property. Dawn contends that the trial court should
have classified the parties’ respective credit card debt as “separate debt” and held that
each party was separately responsible for the post-filing debts he or she incurred instead
of including the parties’ credit card debt in the division of marital property.
{¶61} In his sixth cross-assignment of error, David likewise challenges the trial
court’s allocation of the parties’ credit card debt, claiming that it is “inherently unfair”
and “inequitable” that he was ordered to retain $37,195.96 in credit card debt while Dawn
was ordered to retain only $16,441.58 in credit card debt as part of the property division.
{¶62} The trial court must take into account the parties’ “marital debt” when
dividing marital property. Chattree, 2014-Ohio-489 at ¶ 8, citing Kehoe v. Kehoe,
2012-Ohio-3357, 974 N.E.2d 1229, ¶ 14. Marital debt includes any debt that is incurred
during the marriage for the joint benefit of the parties or for a valid marital purpose.
Cooper v. Cooper, 12th Dist. Clermont No. CA2013-02-017, 2013-Ohio-4433, ¶ 18,
citing Nichols-Ross v. Ross, 12th Dist. Butler No. CA2008-03-090, 2009-Ohio-1723, ¶
26. Similar to assets, debts accumulated during the marriage are presumed to be marital
debts. Cooper at ¶ 18. Accordingly, when a debt is incurred during the marriage, the
burden is on the party seeking to have the debt classified as a separate debt to
demonstrate, by a preponderance of the evidence, that the debt was the separate obligation
of the other spouse or was not for a valid marital purpose. Id. The mere fact that a debt
is in the name of one spouse alone is not enough to establish that the debt was the
spouse’s separate debt. Id., citing R.C. 3105.171(H) and Kohus v. Kohus, 12th Dist.
Clermont No. CA2002-07-055, 2003-Ohio-2551, ¶ 21.
{¶63} It was undisputed that at the time of trial, there was a $37,195.96 total
balance on two credit cards in David’s name that David used exclusively after the divorce
filing, and a $16,441.58 balance on five credit cards in Dawn’s name that Dawn used
exclusively after the divorce filing. David testified that he used his credit cards for
health insurance payments for himself and the family, attorney fees for a criminal case he
was involved with, payment of Dawn’s attorney fees, and other personal expenses,
including food, toiletries, and entertainment for himself and the parties’ children. Dawn
testified that she used her credit cards to pay for living expenses for herself and her
children, including expenses for food, clothing, personal grooming, and the children’s
extracurricular activities, and household cleaning, repair, and maintenance expenses.
{¶64} The trial court included the parties’ post-filing credit debt in its allocation of
parties’ marital liabilities and determined it would be “fair and equitable” to allocate
David’s post-filing credit card debt to David and Dawn’s post-filing credit card debt to
Dawn. The classification of the parties’ post-filing credit card debt as marital debt and
its inclusion in the division of marital assets and liabilities (with David assuming
$37,195.96 in credit card debt and Dawn assuming $16,441.58 in credit card debt) had the
net effect of decreasing the amount of the equalization payment to Dawn.
{¶65} Following a careful review of the record, we find that the trial court’s
classification of the parties’ post-filing credit card debt as marital debt is against the
manifest weight of the evidence. There was no evidence that the parties’ credit card
account balances at the time of trial were the result of expenses incurred for the “joint
benefit” of the parties or for a “valid marital purpose.” Dawn testified that the charge
accounts in her name were opened after the parties’ divorce filing and that she used the
accounts exclusively to pay for her and the children’s personal expenses. Although it is
unclear from the record when the two credit card accounts in David’s name were opened,
David similarly testified that he used his credit cards after the divorce filing exclusively
for his expenses. Neither party claimed that any of their credit card account balances
were attributable to marital expenses pre-dating the parties’ separation or for a joint
marital purpose. See, e.g., Davis v. Davis, 7th Dist. Monroe No. 831, 2000 Ohio App.
LEXIS 6183, *9 (Dec. 22, 2000) (credit card debt appellant acquired after parties
separated on own personal credit card “was not marital and therefore, not subject to
division”); Currey v. Currey, 5th Dist. Holmes No. 09 CA 13, 2010-Ohio-2936, ¶ 30 (trial
court properly held appellant responsible for her credit card balances after the date of the
parties’ separation where the parties lived physically and financially separate and apart for
more than two years prior to the decree of divorce); Brokaw v. Brokaw, 8th Dist.
Cuyahoga No. 92729, 2010-Ohio-1053, ¶ 20-22 (trial court did not abuse discretion in
making wife responsible for credit card debt she incurred after husband left the marital
home in the “absence of evidence to show that the debt had been incurred for a joint
purpose”).
{¶66} Furthermore, the treatment of the parties’ post-filing credit card debt as a
marital debt would have the effect of undermining the trial court’s prior orders in this
case and, as such, would be inequitable. The record reflects that Dawn’s credit card
balances included charges for her and the children’s personal expenses — expenses that
were to have been paid out of the temporary spousal support David had already paid to
Dawn. Similarly, the record reflects that David’s credit card balances included the
family’s health insurance costs and Dawn’s attorney fees — expenses David was required
to pay under the temporary support orders and interim attorney fee award to Dawn.
David should not be “double charged” for Dawn’s personal expenses — first, by paying
Dawn spousal support to cover her expenses and, then, by having her personal credit card
debt related to those expenses included as part of the marital property division.
Likewise, the value of Dawn’s prior support and attorney fees awards should not be
diminished by having David’s personal credit card debt related to those expenses included
as part of the marital property division. Accordingly, Dawn’s first and second
assignments of error are sustained. David’s sixth cross-assignment of error is overruled.
We remand the matter and direct that the trial court adjust the property division to reflect
the classification of the parties’ post-filing credit card debt as separate debt.
Tax Liabilities
{¶67} The parties also challenge the trial court’s allocation of their tax liabilities.
In her fifth assignment of error, Dawn contends that the trial court erred in zeroing out
David’s support arrearages for Dawn’s share of the parties’ tax liability for 2011 and
2012. In his third and fourth cross-assignments of error, David claims that the trial court
erred in failing to include the parties’ 2010 and 2013 tax liabilities in its allocation of the
parties’ marital debt and in offsetting Dawn’s share of the parties’ 2011 and 2012 tax
liabilities against the balance of the arrearages David owed Dawn under the May 9, 2011
and August 22, 2011 temporary support orders.
{¶68} Dawn’s fifth assignment of error states:
V. The trial court erred and abused its discretion when it reduced the
support arrearage Appellee owed Appellant under the temporary support
order to zero and order[ed] Appellant to file joint tax returns with Appellee
for the tax years 2011 and 2012.
{¶69} David’s third and fourth cross-assignments of error state, in relevant part:
III. The trial court erred and abused its discretion by failing to consider the
2010 and 2013 tax liability of the parties thus resulting in an inequitable
allocation of property.
IV. The trial court erred and abused its discretion by * * * offsetting the
parties[’] 2011 and 2012 tax liability with the arrearage balance resulting in
an inequitable allocation of property.
{¶70} The trial court determined that because Dawn had received the benefit of
the income David earned in 2011 and 2012, including payment of her mortgage, taxes,
home insurance, landscaping and yard maintenance services, utilities, car payment and
auto insurance, cell phone bill, and health insurance, it would be “equitable to allocate
one-half of the 2011 and 2012 unpaid federal and state tax obligations to [Dawn] by
giving [David] a credit against support arrearages.”8 Concluding that Dawn’s share of
the 2011 and 2012 taxes would likely exceed the $32,252.82 balance of the existing
arrearages,9 the trial court reduced the arrearages to zero. Both parties claim this was
error. Dawn argues that because David had not prepared or filed his 2011 and 2012 tax
returns at the time of trial, his ultimate tax liability was “speculative” and that the trial
court, therefore, “did not have sufficient evidence before it to [make] an informed
equitable division of these speculative liabilities.” David argues that the trial court
8
The trial court, however, excepted from Dawn’s share of the tax obligations for 2011 or
2012 any liability associated with the “shareholder loan” David took from All-Sweep to invest in
Spiccia & Rossi. David’s accountant testified that if David did not repay the “shareholder loan”
from All-Sweep that he used to invest in Spiccia & Rossi, then it would be treated as a distribution
from All-Sweep, which would be taxable income. The court held that if any tax liability associated
with that transaction were to be attributed to tax years 2010, 2011, or 2012, any additional taxes,
interest, or penalties would be David’s sole responsibility.
9
$32,252.82 was the balance of the temporary support arrearage after
accounting for the credit the trial court improperly awarded to David for payment of
certain of the children’s expenses, as discussed above.
misread the projections of the parties’ 2011 tax liability, resulting in an inequitable
division of that tax liability. David also argues that the trial court erred in failing to
allocate the parties’ 2010 tax liability as part of the property division and in failing to
provide a methodology for calculating the parties’ 2012 and 2013 tax liabilities.
{¶71} With respect to the parties’ 2010 tax liability, the undisputed evidence at
trial was that the parties’ 2010 tax liability was paid in 2011. Accordingly, the value of
the remaining marital assets at the time of trial would reflect payment of that debt, and the
trial court, therefore, did not abuse its discretion in failing to credit David for payment of
that liability in its allocation of marital property.
{¶72} With respect to the trial court’s allocation of the parties’ 2011 and 2012 tax
liabilities, these tax liabilities were marital debts that the court had the discretion to divide
equally. Norris v. Norris, 7th Dist. Mahoning No. 01 CA 173, 2002-Ohio-5211, ¶ 19,
citing Miller v. Miller, 9th Dist. Summit No. 17711, 1997 Ohio App. LEXIS 8 (Jan. 2,
1997).
{¶73} In allocating the 2011 and 2012 tax liability, the trial court states that
Michael Bauman, the parties’ accountant, “testified during trial that filing separately [in
2011] would have resulted in zero tax liability for [Dawn] but $40,637 federal and $9,594
state liability for [David].”10 Bauman testified at trial regarding the parties’ projected
Joint exhibit No. 30, entitled “2011 Tax Projection,” includes figures for both 2010 and
10
2011. The $40,637 figure referenced by the trial court refers to the federal tax balance due in 2010
based on joint filing. The $9,594 figure appears to refer to the total state tax payments made in
2010.
2011 tax liability, and a projection of the parties’ 2011 tax liability (based on whether the
parties filed jointly or separately) was also admitted as a joint exhibit. Upon our review
of the record, however, it appears that, in making this statement, the trial court was
mistakenly looking at the parties’ tax liability for 2010, not their projected tax liability for
2011. Based on Bauman’s projections, the combined state and federal taxes the parties
owed for 2011 totaled $105,028, if filing jointly, or $110,697 for David and a refund of
$519 for Dawn, if filing separately. Given that (1) the $32,252.82 arrearage balance the
trial court then believed existed is substantially less than a 50 percent share of the 2011
projected tax liability that the trial court stated it was allocating to Dawn, and (2) it
appears that the trial court’s allocation of the parties’ 2011 and 2012 tax liabilities (and
related zeroing of temporary support arrearages) was based on information regarding the
parties’ 2010 tax liability rather than the parties’ 2011 projected tax liability (which was
substantially greater than the parties’ 2010 tax liability), we remand this matter to the trial
court for reconsideration of its allocation of the parties’ tax liabilities and to make any
necessary adjustments to the division of property or equalization payment to account for
any revised allocation of the parties’ tax liabilities.
{¶74} Dawn’s fifth assignment of error and David’s third’s cross-assignment of
error lack merit and are overruled. David’s fourth cross- assignment of error, to the
extent it relates to the trial court’s allocation of tax liabilities, is sustained in part and
overruled in part.
Calculation of David’s Income for Support Purposes
{¶75} In Dawn’s sixth assignment of error and David’s fifth cross-assignment of
error, the parties challenge the trial court’s calculation of David’s income for purposes of
determining the amount of spousal and child support to be awarded.
{¶76} Dawn’s sixth assignment of error states:
VI. The trial court erred and abused its discretion when it incorrectly averaged
Appellee’s W-2 income, thereby lowering Appellee’s income for support purposes.
{¶77} David’s fifth cross-assignment of error states:
V. The trial court erred and abused its discretion by finding an improper
income for the parties and no deviation for support.
{¶78} The trial court calculated David’s income for support purposes by taking
the total of (1) the average of David’s W-2 salary from 2007 to 2011 as reported on his
tax returns and (2) the average of the net distributions David received from All-Sweep
from 2007 to 2011 as reported in All-Sweep’s financial statements (excepting a few
unusual expenditures incurred in 2011). Dawn claims that because David’s W-2 income
increased every year from 2007 to 2011, it was an abuse of discretion for the trial court to
average David’s W-2 salary over several years rather than using his last year’s salary (i.e.,
his salary in 2011) in calculating his income. Dawn claims that David’s total income for
purposes of calculating spousal and child support should have been $450,000 (the income
figure referenced in the agreed August 22, 2011 temporary support order), or at the very
least, $403,920 (the income figure calculated using David’s 2011 salary), instead of the
$373,000 income figure used by the trial court.
{¶79} Courts have discretion, in calculating income for support purposes, to
average income over a reasonable period of years in appropriate circumstances. See,
e.g., MacDonald v. MacDonald, 8th Dist. Cuyahoga No. 96099, 2011-Ohio-5389, ¶ 31,
citing R.C. 3119.05(H). Based on its “analysis of many days of testimony and pages of
financial records,” the trial court determined that averaging David’s income and
distributions over five years was a “reliable method” to determine David’s income. The
record reflects that there was variability in David’s business and that whether David
received income in the form of W-2 salary or distributions from the company was largely,
if not entirely, discretionary with David. Accordingly, under the circumstances, we find
no abuse of discretion in the trial court’s decision to average David’s W-2 salary over five
years in calculating his income for support purposes. Dawn’s sixth assignment of error
is overruled.
{¶80} David also contends that the trial court erred in using a value of $373,000
as his income for purposes of calculating spousal and child support, claiming that it
amounts to an inequitable “double-dipping.” Relying on the Tenth District’s decision in
Heller v. Heller, 10th Dist. Franklin No. 07AP-871, 2008-Ohio-3296, David argues that
because Dawn received a property distribution based on the valuation of his company that
included the company’s future profits and cash flows, she should not also receive spousal
support based on an income figure that “includes income derived from David’s ownership
of All-Sweep,” i.e., those same profits and cash flows.
{¶81} The Tenth District explained this “double-dipping” concept in Heller as
follows:
“‘[D]ouble-dipp[ing]’ refers to the double counting of a marital
asset, once in the property division and again in the [spousal support]
award. More specifically, where a court uses a business owner’s ‘excess
earnings’ to value the interest in the business and also fixes support on that
spouse’s total income (inclusive of the ‘excess earnings’ used to value the
business), a ‘double-dip’ occurs.” Vuotto, Double Trouble (2004), found
at http://www.vuotto.com/new-jersey-divorce-articles/double-trouble.htm
(last visited June 25, 2008). “[U]tilizing the same stream of income that
forms the basis of valuing a business when calculating [spousal support]
provides the non-owning spouse with the benefit from the same stream of
income twice.” Id.
Heller at ¶ 20.
{¶82} In Heller, the husband owned a 39.5 percent interest in a company from
which he received a $300,000 salary. Id. at ¶ 2, 11. As part of the property distribution
in his divorce case, he was awarded his entire interest in the company, which was valued
at $700,018, and the wife was awarded other marital assets totaling $350,000 in value.
Id. at ¶ 10. The husband was also ordered to pay his former wife $8,000 plus “20 percent
of each payment of additional gross or, pre-tax income” he received as a bonus in the
future. Id. at ¶ 11. The Tenth District held that awarding the wife a percentage of the
husband’s future bonus income as spousal support resulted in a “double-dipping” because
it was based on the future earnings of the company, which the court had already
considered when valuing the company as part of the property distribution. Id. at ¶ 22-23.
{¶83} Other courts, applying this “double-dipping” concept, have similarly held
that a trial court abuses its discretion when it uses an income figure, for purposes of
determining spousal support, based on future profits or earnings that were included as
part of the valuation of the company in the property division. See, e.g., Corwin,
2013-Ohio-3996 at ¶ 48-55 (improper “double-dipping” occurred where valuation of
husband’s ownership interest in company and calculation of husband’s income included
the same $10,000 of unreported vending machine receipts; trial court abused its discretion
in treating husband’s share of company’s expected future profits as both a marital asset
subject to division and as income for spousal support purposes); see also Chattree,
2014-Ohio-489 at ¶ 75 (“Generally, a trial court may be found to have abused its
discretion by allowing the payee spouse to ‘double-dip’ when a marital pension is divided
as part of the property distribution and is subsequently included as income for purposes of
establishing the support obligations of the payor spouse because the payee spouse
receives a portion of that pension in two different forms.”); but see Bagnola v. Bagnola,
5th Dist. Stark No. 2003-CA-00120, 2003-Ohio-5916, ¶ 66-68 (rejecting
“double-dipping” argument as basis for overturning spousal support award where
husband’s earned income from three business ventures was both “inextricably tied to the
valuation of each company” and is “necessarily a basis for determination of spousal
support”); cf. Kline v. Kline, 8th Dist. Cuyahoga No. 96734, 2012-Ohio-479, ¶ 11
(observing that while husband’s pension, distributed as part of the parties’ marital assets,
could not fund a spousal support obligation to former wife, the trial court could still
properly “consider the income for the purposes of determining the appropriate amount of
spousal support that can be satisfied through other sources of income or assets” and
concluding that “being required to satisfy spousal support through a previously divided
marital asset is not synonymous with considering the income derived from the asset in
determining the appropriate spousal support award”).
{¶84} Instead of the $373,000 income figure used by the trial court, David
maintains that the trial court should have used $130,000 as the value of his annual income
for support purposes, based on the testimony of his expert that $130,000 would be
reasonable “market-rate officer compensation” for David or others similarly employed.
There was, however, no evidence that David ever received an annual salary of $130,000
from All-Sweep.
{¶85} R.C. 3105.18(C)(1)(a) mandates that the trial court consider the parties’
income “from all sources, including, but not limited to, income derived from property
divided, disbursed, or distributed under [R.C. 3105.171]” in determining whether an
award of spousal support is “appropriate and reasonable” and, if so, in determining the
“nature, amount, and * * * duration of spousal support.” R.C. 3105.171(C)(3) requires
that marital assets be divided “prior to making any award of spousal support * * * and
without regard to any spousal support so awarded.” R.C. 3105.18(A) provides that
“‘[s]pousal support’ does not include any payment made to a spouse or former spouse * *
* that is made as part of a division or distribution of property or a distributive award
under [R.C. 3105.171].”
{¶86} Based on the unique circumstances in this case, we find that it would be
inequitable not to consider both the amount of David’s W-2 salary and the substantial
distributions he historically received from his company in determining an “appropriate
and reasonable” spousal support award, notwithstanding any potential concerns regarding
“double-dipping.” R.C. 3105.18(C)(1).
{¶87} In this case, there was a significant disparity between David’s W-2 salary
and the distributions he received from the company. The record reflects that whereas
David’s W-2 salary 11 for the years 2007-2011 ranged from $49,550 to $112,607
(averaging $81,503 a year), his net distributions from the company ranged from $242,602
to $499,464 during 2007-2011 (averaging, after deducting certain one-time expenses
incurred in 2011, $291,313 annually). It is undisputed that the distributions from the
company were the primary means by which David supported the family during the
marriage. It was likewise undisputed that both the amount and manner in which David
received “income” from his company, i.e., whether in the form of W-2 salary or
distributions from the company, were largely, if not entirely, discretionary with David.
Accordingly, for these reasons, we find that the trial court did not abuse its discretion in
using $373,000 as David’s income in calculating support.
{¶88} Moreover, such “double-dipping” considerations do not apply when
calculating child support. The “broad definition” of “gross income” set forth in R.C.
3119.01(C)(7) “includes excess earnings from an interest in a business.” Corwin,
2013-Ohio-3996 at ¶ 55, fn. 5. Further, children for whom child support is paid are “not
11
These figures also include a nominal salary paid by the company to Dawn. Because Dawn
testified that she had not worked for the company during this time period, her “salary” is properly
included in David’s W-2 salary.
the distributee[s] of marital property consisting of a business valued pursuant to an
income capitalization method and, therefore, the child[ren] receive[] no ‘double-dip.’”
Id. Accordingly, David’s “double-dipping” argument has no application to the
calculation of his income for purposes of determining his child support obligation. See
id.
{¶89} David argues, in the alternative, that, “even if the Heller principles are not
applied,” the testimony of the parties’ accountant, Michael Bauman, and related exhibits
“illustrates that the $373,000 annual income figure * * * is an abuse of discretion.”
David maintains that, based on the evidence, the trial court should have listed David’s
income at $312,000 (based on the average of the parties’ tax returns for 2007-2011) or
$335,000 (David’s total income for 2011 less the $135,000 he took out of All-Sweep to
meet his obligations under the temporary support order, which was over the basis in the
company). We disagree. As discussed above, the record reveals that, after careful
consideration and “analysis of many days of testimony and pages of financial records,”
the trial court determined that $373,000 was a reasonable and “reliable” measure of
David’s income. David has not shown that the trial court’s use of the $373,000 figure in
calculating his spousal and child support obligations was unreasonable, arbitrary, or
capricious.
Imputation of Income to Dawn
{¶90} David also claims that the trial court erred in refusing to impute income of at
least minimum wage to Dawn in calculating the parties’ child support obligations.
Pursuant to R.C. 3119.01(C)(5)(b) and(11)(a), “income” for purposes of calculating child
support includes the potential income that may be imputed to a parent who is found to be
voluntarily unemployed or underemployed. In determining if an individual is voluntarily
unemployed, “‘[t]he test is not only whether the [unemployment] was voluntary, but also
whether it was made with due regard to the obligor’s income-producing abilities and her
or his duty to provide for the continuing needs of the child or children concerned.’”
Hurley, 2013-Ohio-5592 at ¶ 14, quoting Woloch v. Foster, 98 Ohio App. 3d 806, 811,
649 N.E.2d 918 (2d Dist.1994). A parent claiming that the other parent is voluntarily
underemployed has the burden of proof on that issue. Hurley at ¶ 14, citing Fischer v.
Fischer, 2d Dist. Clark No. 11 CA 81, 2012-Ohio-2102, ¶ 24, and King v. King, 4th Dist.
Jackson No. 12CA2, 2013-Ohio-3426, ¶ 21.
{¶91} In this case, the trial court did not find that Dawn was voluntarily
unemployed. Although Dawn testified that she had not looked for work and presented
no evidence of any physical or mental infirmities that would have prevented her from
working full-time, she also testified that she had not worked since 1996, still had
substantial child care responsibilities for the parties’ four minor children, had few
marketable skills, would need to obtain additional education and training in order to
become self-supporting, and had enrolled at Lakeland Community College with the
intention of pursuing a nursing degree. No evidence was presented regarding any job
opportunities in the area for which Dawn would qualify. Under the circumstances, we do
not find that the trial court abused its discretion in failing to impute additional income to
Dawn in calculating the parties’ child support obligation.
Child Support Award
{¶92} Finally, David argues that the trial court abused its discretion in ordering
him to pay $2,000 a month in child support, claiming that “extraordinary circumstances,”
including the liberal parenting time he received under the parties’ agreed shared parenting
plan, the greater amount of liquid assets at Dawn’s disposal following the distribution of
marital property, and the “significant tax liability” David would have to pay under the
final judgment entry of divorce, warranted a “downward deviation” of his child support
obligation pursuant to R.C. 3119.04(B) and 3119.24.
{¶93} A trial court has broad discretion to calculate child support. Absent an
abuse of discretion, an appellate court will not disturb a child support order. Wright,
2009-Ohio-128 at ¶ 13, citing Booth, 44 Ohio St. 3d 142 at 144, 541 N.E.2d 1028.
{¶94} In general, the amount of child support calculated using the child support
guidelines and child support computation worksheet is “rebuttably presumed to be the
correct amount of child support, although the trial court may deviate from that amount.”
Gentile v. Gentile, 8th Dist. Cuyahoga No. 97971, 2013-Ohio-1338, ¶ 49, citing R.C.
3119.03 and Marker v. Grimm, 65 Ohio St. 3d 139, 601 N.E.2d 496 (1992), paragraph one
of the syllabus. However, when the parents’ combined income exceeds $150,000, as it
does in this case, R.C. 3119.04(B) controls the determination of the parents’ child support
obligation. Under R.C. 3119.04(B), the amount of child support to be awarded is to be
determined by the trial court on a case-by-case basis and is left “‘entirely to the court’s
discretion.’” Brownlee v. Brownlee, 8th Dist. Cuyahoga Nos. 97037 and 97105,
2012-Ohio-1539, ¶ 26, quoting Cyr v. Cyr, 8th Dist. Cuyahoga No. 84255,
2005-Ohio-504, ¶ 54. The trial court is not required to make any specific findings or to
provide any explanation for its child support award unless it awards less than the amount
calculated for combined incomes of $150,000. Brownlee at ¶ 26; Cyr at ¶ 56.
{¶95} Based on the child support computation worksheet, the trial court calculated
David’s share of the parties’ annual child support obligation for their four minor children
to be $13,987 when private health insurance is provided and $15,429 when private health
insurance is not provided. Determining that “the actual annual obligation would be
unjust and inappropriate and would not be in the best interest of the minor children for the
reasons stated herein,” the trial court increased David’s annual child support obligation to
$24,000 (or $500 per child per month), plus a 2 percent processing fee. Upon our review
of the record, we cannot say that the trial court’s child support award was arbitrary,
capricious, or unreasonable. Accordingly, we find no abuse of discretion by the trial
court in determining David’s child support obligation.
{¶96} David’s fifth cross-assignment of error is overruled.
Attorney Fees
{¶97} In Dawn’s ninth assignment of error and David’s tenth cross-assignment of
error, each party challenges the trial court’s award of $35,000 in additional attorney fees
to Dawn. Dawn argues that the additional attorney fee award was “insufficient” and
“inequitable” under the circumstances and that she should have been awarded $70,000 in
attorney fees.12 David claims that the evidence at trial established that Dawn had the
ability “to pay for her own attorney fees” and that she, therefore, did not “‘need’
assistance for attorney fees.” He claims that the trial court’s order requiring him to pay
an additional $35,000 towards Dawn’s attorney fees on top of the $20,000 in interim
attorney fees he already paid was “error, an abuse of discretion[,] and contrary to R.C.
3105.73.” Both arguments are meritless.
{¶98} Dawn’s ninth assignment of error states:
IX. The trial court erred and abused its discretion in its award of attorney
fees which was insufficient and inequitable when considering all the
elements of the statute and the evidence.
{¶99} David’s tenth cross-assignment of error states:
X. The trial court erred and abused its discretion by ordering
appellee/cross-appellant to pay $35,000.00 toward appellee’s attorney fees
as said decision was against the manifest weight of the evidence and is an
inequitable decision.
{¶100} There are “no automatic attorney fees” in domestic relations cases.
Packard v. Mayer-Packard, 8th Dist. Cuyahoga No. 85189, 2005-Ohio-4392, ¶ 8.
However, pursuant to R.C. 3105.73(A), a trial court “may award all or part of reasonable
attorney’s fees and litigation expenses to either party if the court finds the award
12
Based on the billing statement she submitted, the trial court noted that Dawn’s “total fees
and expenses are $113,148.”
equitable.” In determining whether an award of attorney fees is equitable, “the court
may consider the parties’ marital assets and income, any award of temporary spousal
support, the conduct of the parties, and any other relevant factors the court deems
appropriate.” R.C. 3105.73(A). Whether to award attorney fees under R.C. 3105.73(A)
is within the sound discretion of the trial court. Walpole v. Walpole, 8th Dist. Cuyahoga
No. 99231, 2013-Ohio-3529, ¶ 33, citing Rand v. Rand, 18 Ohio St. 3d 356, 359, 481
N.E.2d 609 (1985). We find no abuse of discretion in the trial court’s decision to award
Dawn an additional $35,000 (and no more) toward her attorney fees.
{¶101} In considering an award of additional attorney fees, the trial court
identified several factors under R.C. 3105.73 and Loc.R. 21(B) of the Court of Common
Pleas of Cuyahoga County, Domestic Relations Division that it deemed relevant to its
determination of whether an additional award of attorney fees to Dawn was equitable and
appropriate. These factors included: the disparity in the parties’ income, the difficulty in
ascertaining or valuing the parties’ assets, the length of the trial, and the amount of the
interim fees and expenses previously awarded to Dawn. The trial court further explained
its attorney fee award as follows:
In determining the amount of reasonable attorney fees for this case,
consideration was given to whether all the legal services rendered were
necessary and whether under the facts of this case the amount of time
expended on such service was fully compensable. The Court concludes
that after the division of the marital property and the award of spousal
support, [Dawn] will not have the financial ability to pay all of her own
attorney fees and Plaintiff will have the ability to contribute to these fees.
Based on the foregoing, an award of attorney fees to [Dawn] in the amount
of $35,000 is reasonable.
{¶102} Based on a careful review of the record, we find no abuse of discretion in
the trial court’s attorney fee award. Dawn’s ninth assignment of error and David’s tenth
cross-assignment of error are without merit and are overruled.
Duration of Spousal Support
{¶103} In her tenth and final assignment of error, Dawn argues that the trial court
abused its discretion by (1) limiting the duration of her spousal support award to 46
months and (2) retaining jurisdiction over the spousal support award.
{¶104} Dawn’s tenth assignment of error states:
X. The trial court erred and abused its discretion and was arbitrary in
awarding the wife only three years of future spousal support when the wife
has no meaningful way of supporting herself and her five children.
{¶105} At trial, Dawn requested spousal support of $15,000 a month for a period
of 68 months (five years and eight months). The trial court awarded Dawn monthly
spousal support of $12,500 for the 68 months she requested, but then credited David for
the 22 months he already had paid temporary spousal support while the case was pending,
leaving 46 months of future spousal support commencing July 1, 2013. The trial court
reserved jurisdiction over the spousal support award in the event that David’s income
changed.
{¶106} Dawn claims that David should not be given credit for the time he paid
temporary support and instead should be ordered to pay spousal support for 68 months
beginning July 1, 2013. She also contends that the spousal support should be
“non-modifiable” during the term of support.
{¶107} In determining (1) whether to grant spousal support and (2) if so, the
amount and duration of spousal support payments, the trial court must consider the factors
listed in R.C. 3105.18. Robinson v. Robinson, 8th Dist. Cuyahoga No. 97933,
2012-Ohio-5414, ¶ 22, citing Deacon, 2009-Ohio-2491. These factors include each
party’s income, earning capacity, age, retirement benefits, education, assets and liabilities,
and physical, mental, and emotional condition; the duration of the marriage; the parties’
standard of living; a party’s inability to seek employment outside the home; the parties’
contributions during the marriage; tax consequences; and lost income due to a party’s
fulfillment of marital responsibilities. R.C. 3105.18(C)(1)(a)-(m). In addition, the trial
court is free to consider any other factor that the court finds to be “relevant and
equitable.” R.C. 3105.18(C)(1)(n).
{¶108} The trial court is not required to comment on each and every statutory
factor; the record need only show that the court considered the statutory factors when
making its award. Neumann v. Neumann, 8th Dist. Cuyahoga No. 96915,
2012-Ohio-591, ¶ 17, citing Carman v. Carman, 109 Ohio App. 3d 698, 703, 672 N.E.2d
1093 (12th Dist.1996). If the record reflects that the trial court considered the relevant
statutory factors, and if the judgment contains sufficient detail for a reviewing court to
determine that the support award is fair, equitable, and in accordance with the law, the
reviewing court will uphold the award. Chattree, 2014-Ohio-489 at ¶ 71, citing Daniels
v. Daniels, 10th Dist. Franklin No. 07AP-709, 2008 Ohio App. LEXIS 772, *9 (Mar. 4,
2008).
{¶109} Dawn argues that the trial court’s decision “does not reflect that the Court
engaged in any analysis as to whether or not [46 months] was a sufficient and reasonable
time period for [her] to become self supporting.” She claims that 3 ½ years of spousal
support is “inadequate” and “arbitrary” because it does not take into account what is
necessary for her to successfully re-enter the work force, while at the same time
supporting herself, maintaining her household, and raising the parties’ children. The
record reveals otherwise.
{¶110} In this case, the trial court separately addressed each of the relevant R.C.
3105.18 factors at length in its judgment entry. Based on the statutory factors, in
particular, the duration of the marriage, the need for Dawn to return to school to become
gainfully employed, and Dawn’s continuing parental responsibilities for her four minor
children, the trial court concluded that monthly spousal support in the amount of $12,500
was “appropriate and reasonable” and that 68 months was “an equitable and reasonable
period of spousal support” given the circumstances. However, because David had
already been paying most of Dawn’s household expenses, plus full spousal and child
support since August 2011, the trial court determined that David should be given credit
for the 22 months for which he had already paid spousal support while the case was
pending, leaving a remaining period of 46 months of spousal support.
{¶111} The record reveals that the trial court conducted a thorough analysis of the
relevant statutory factors in determining both the amount and duration of Dawn’s spousal
support award. The trial court’s findings are supported by competent, credible evidence
in the record. Accordingly, we find no abuse of discretion in trial court’s award of
spousal support.
{¶112} We likewise find no abuse of discretion in the trial court’s decision to
retain jurisdiction over the spousal support award in the event David’s income changes.
“The decision to retain jurisdiction to modify an award of spousal support is left to the
sound discretion of the trial court.” Deacon, 2009-Ohio-2491 at ¶ 63, citing Johnson v.
Johnson, 88 Ohio App. 3d 329, 623 N.E.2d 1294 (5th Dist.1993). It was undisputed that
David’s business is cyclical and weather dependent. The court reasonably elected to
maintain jurisdiction over the amount of spousal support in case the parties’
circumstances change.
{¶113} Dawn’s tenth assignment of error is overruled.
Admissibility of Testimony from Dawn’s Valuation Expert
{¶114} In his eleventh and final cross-assignment of error, David argues that the
trial court abused its discretion in permitting Dawn’s valuation expert, Lastovka, to testify
regarding the valuation of All-Sweep.
{¶115} David’s eleventh cross-assignment of error states:
XI. The trial court erred and abused its discretion by denying
appellee/cross-appellant’s motion in limine and allowing
appellant/cross-appellee’s expert to testify and submit a report into
evidence.
{¶116} Because the trial court accepted Cuini’s valuation of All-Sweep, rather
than Lastovka’s valuation of All-Sweep, any claimed error in the admissibility of
Lastovka’s testimony is moot. David’s eleventh cross-assignment of error is overruled.
{¶117} We affirm the trial court’s judgment in part, reverse it in part, and remand
the case to the trial court (1) for adjustment of the support arrearages to correct the
improper crediting of $13,224.63 in expenditures by David against the support arrearages,
(2) for adjustment of the property division to reflect the classification of the parties’
post-filing credit card debt as separate debt, (3) for reconsideration of the allocation of the
parties’ tax liabilities, and (4) to make any other necessary adjustments to the division of
property, equalization payment, or award of support arrearages to account for any revised
allocation of the parties’ tax liabilities.
{¶118} Judgment affirmed in part, reversed in part, and remanded.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
__________________________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR