Gentile v. Gentile , 2013 Ohio 1338 ( 2013 )

[Cite as Gentile v. Gentile, 2013-Ohio-1338.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97971
MARY M. GENTILE
PLAINTIFF-APPELLANT
and CROSS-APPELLEE
vs.
RICHARD D. GENTILE
DEFENDANT-APPELLEE
and CROSS-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-334239
BEFORE: Kilbane, J., S. Gallagher, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: April 4, 2013
ATTORNEYS FOR APPELLANT
Scott S. Rosenthal
Adam J. Thurman
Schoonover, Rosenthal, Thurman, & Daray, L.L.C.
1001 Lakeside Avenue
Suite 1720
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Carl A. Murway
Thomas J. Lee
Taft Stettinius & Hollister, L.L.P.
200 Public Square
Suite 3500
Cleveland, Ohio 44114
Christopher P. Lacich
Roth Blair
100 East Federal Street
Suite 600
Youngstown, Ohio 44503
MARY EILEEN KILBANE, J.:
{¶1} Plaintiff-appellant, Mary Gentile (“wife”), appeals from the final decree
issued by the Domestic Relations Division of the Cuyahoga County Common Pleas Court
in her divorce from defendant-appellee, Richard Gentile (“husband”), and assigns four
errors for our review. The husband cross-appeals and assigns eight errors for our review.
Because we have determined that none of the assignments of error are meritorious, we
affirm the final decree of divorce.
{¶2} The parties were married on June 10, 1986. They had two children, one
son who is now emancipated, and a second son born in 1995. The wife has a bachelor’s
degree and, apart from brief employment for Nutrisystem, has worked primarily as a
homemaker for the duration of the marriage. The husband is a board certified plastic
surgeon and has a master’s degree in business administration. He is the sole shareholder
and sole practitioner of Otolaryngology Head and Neck consultants in Youngstown, Ohio.
{¶3} The parties have had an acrimonious relationship, and the wife has filed for
divorce in 2001, 2003, 2004, and 2008, but she later dismissed each of her divorce
complaints. She filed the instant matter on November 16, 2010. The record indicates
that in November 2010, the husband filed a complaint for divorce in Mahoning County,
the county that the parties had resided in prior to June 2009, but the husband’s complaint
was later dismissed for lack of proper venue.
{¶4} On March 21, 2011, the trial court awarded the wife temporary support,
pendente lite. Within this order, the court concluded that the husband earned between
$500,000 and $1,000,000 per year, and it ordered the husband to pay the wife $8,500 per
month as spousal support; the mortgages and various expenses for the parties’ homes in
Solon, Ohio, and Bradenton, Florida; tuition and expenses for their youngest son, J.G.;
unreimbursed medical expenses; and car payments. The court also released $150,000 to
each party for expenses.
{¶5} On November 14, 2011, the parties entered into a Custody Agreement that
designated the wife as residential parent and legal custodian of J.G.
{¶6} Prior to trial, the parties stipulated that they have $1,408,966 in retirement
accounts (Morgan Stanley and American Funds), and $4,866,705 in investments
(American Funds, Vanguard, and Morgan Stanley). The parties also stipulated that the
Solon home and the Bradenton home and the contents of each would be sold and the
proceeds divided equally.
{¶7} The matter proceeded to trial over various dates in November 2011 and
December 2011. The central issues of the trial were the value of the husband’s medical
practice, the present value of $350,000 that the husband invested in a “Centurion
Development/Ashford Park L.L.C.” real estate project, whether the wife’s $264,450
inheritance remained her separate property or became part of the marital estate, whether
the husband had received inheritances from his family, the amount and duration of
spousal support for the wife, and whether the wife was entitled to an additional award for
her attorney fees.
{¶8} As of the start of the trial, the wife was 50 years old and had worked
primarily as a homemaker, and the husband was 54 years old and was a successful plastic
surgeon. The parties stipulated that the basis for divorce was incompatibility.
According to their joint exhibits, they had a total of $6,200,000 in assets, which included
$1,480,000 in retirement assets and the remainder in liquid accounts.
{¶9} Testifying upon cross-examination, the husband stated that he lives in
Poland, Ohio. His main medical practice is located in Youngstown, and in 2009, he also
opened small offices in Cleveland and Akron. The husband maintained that he earned
$143,496 per year, but he acknowledged that he also earns income through personal
service contracts with Cynosure and Lumenis, aesthetic laser companies. In addition, in
court documents from October 2011, the husband had indicated that his income is
$454,638 per year, and in a 2006 mortgage application, he stated that he earned $721,260
per year. The husband admitted that his tax returns indicate that his gross income was
$1,090,461 in 2007, $672,840 in 2008, and $564,441 in 2009. He also admitted that he
had received some checks, made out to him individually, as payments for medical
procedures.
{¶10} The husband testified that the corporation repays substantial loans to him
that were used to pay for equipment and expenses. The corporation also pays some of
his personal expenses, such as his American Express bill and his life insurance. Other
tax payments and mortgage payments are given to him as corporate “distributions.”
{¶11} The husband admitted that his corporate receipts book does not contain
entries for the time period from September 11, 2010 to March 17, 2011. He also failed
to produce his practice calendar for the time period preceding January 2011. He
admitted that he has taken “at least a couple thousand” from the cash proceeds of the
practice.
{¶12} The husband acknowledged that his girlfriend works at his practice as the
marketing director and patient care counselor, and that she earns $18 per hour. They
have gone out of town together on approximately ten occasions in 2011.
{¶13} The husband acknowledged that his wife has had various health problems,
and that she worked for a weight loss clinic in the 1980s, and on occasion, she had helped
him at his practice. He handled the family’s finances for the duration of the marriage.
He admitted that his wife had received an inheritance of approximately $264,450, which
was deposited into the parties’ bank account. This sum was then “spent or invested.”
The husband acknowledged that in 2002, he deposited approximately $40,000 into a
Swiss account, but did not tell his wife about this transaction because they “didn’t talk
about things like that.” The husband also acknowledged that immediately after his wife
filed for divorce, he withdrew $50,000 from one of the parties’ bank accounts, and he
claimed that he used it to pay “golf bets, things like that.”
{¶14} The husband also admitted in 2008 that he had invested $350,000 from cash
and corporate accounts in a real estate transaction entitled “Centurion
Development/Ashford Park L.L.C.” He claimed, however, that there was no contract, no
commitment, and no agreement concerning the details of the investment. He also
claimed that the investment has no present value. He acknowledged that prior to the
divorce, he had at least $350,000 in his personal accounts, but as of 2010, the year that
the parties filed for divorce, he had approximately $106,000 in the accounts.
{¶15} As to the value of his practice, the husband acknowledged that he has two
personal service contracts for educational services for Cynosure and Lumenis, and he
deposits these proceeds into personal accounts and not his business office account. He
insisted that these proceeds were not practice-related and were personal payments to him.
{¶16} Tana Wilde testified on cross-examination that she is in a romantic
relationship with the husband, and that after the relationship started, the husband hired her
as his marketing director and patient care counselor. She has accompanied him on trips,
but she denied that he has given her spending money or that he has paid for her bills.
She acknowledged that she handles the cash for the practice and stated that it is logged
into computer records, then locked in a drawer.
{¶17} The wife testified that in 1990 she and each of her brothers inherited
approximately $264,450 from her great aunt’s estate.1 She deposited the money into the
1Thistestimony was corroborated by Louie Touton des Champs, the wife’s
brother, who served as the executor of the aunt’s estate.
parties’ Key Bank account, but the next morning her husband withdrew all of the money.
She further testified that her husband controlled the family’s finances and that he has the
records from these funds and refuses to provide them to her.
{¶18} The wife further testified that she has had surgery on her kidneys, she has
kidney and bladder problems, has lost 38 percent of the usage of her right leg, and suffers
from post traumatic stress in connection with the husband’s alleged prior domestic
violence against her and her older son. She has determined that it will be expensive for
her to purchase health insurance in light of these issues.
{¶19} The wife further testified that she applied the $150,000 that the court
released to her prior to trial to pay household expenses, items for her children, and her
attorney fees. The wife additionally testified that she learned about the husband’s
$350,000 “Centurion Development/Ashford Park L.L.C.” investment during the course of
the litigation, and she opined that the husband had simply given this sum to a friend in
order to hide assets during a period of marital discord in 2003.
{¶20} The wife also testified that she suspected that the husband was concealing
assets so she searched the house and claimed that she found $230,000. She also testified
that she learned from the husband’s employees that he was keeping cash in the
Youngstown office; she discovered $73,000 hidden there. According to the wife,
throughout the course of the marriage, the couple regularly used cash to pay for bills and
expenses. She also claimed that he kept a separate ledger for cash receipts. She
testified that the husband told her that she does not deserve support and threatened to stop
working in order to keep her and her sons from getting money.
{¶21} On cross-examination, the wife admitted that she withdrew approximately
$75,000 from her younger son’s account. She stated that she used this money for
day-to-day expenses and to pay attorney fees.
{¶22} Linda Giangardella (“Giangardella”) testified that she worked as the
husband’s plastic surgery coordinator from 2008 to 2010. According to Giangardella,
patients who entered into a contract for services were required to pay a nonrefundable
deposit of $250, and some patients paid this amount in cash. Giangardella testified that
when she started working at the husband’s office, she marked in the patient’s file that
they had paid in cash. She also listed that the money had been given directly to the
husband because she did not want to be blamed in the event of a discrepancy. After an
office meeting, however, the husband instructed her to simply write “paid in full” in the
file and to lock the cash in a drawer, and then to give it to him later. She claimed that the
practice had received $10,000 in a single day. She admitted, however, that it was not
part of her job to prepare the deposit slips for the practice.
{¶23} The wife presented expert testimony from Bernard Agin, J.D., C.P.A.
(“Agin”) regarding the value of the husband’s medical practice. Agin testified that he
reviewed the husband’s expert report from Hack, Steer and Co. (“Hack, Steer”), regarding
the valuation of the practice, and that he also conducted his own valuation. Agin
testified that like the Hack, Steer evaluation, he used the net asset approach to determine
the value of the practice. Agin further testified that the value of the practice as
determined by Hack, Steer, which was $16,500, was too low for several reasons.
{¶24} First, the Hack, Steer report listed loans from the husband in the amount of
$220,000 as a corporate liability. According to Agin, the loan paid to the corporation
should have been listed as an asset for the sole shareholder, the husband. Another listed
a three-year debt in the amount of $40,000, and the creditor, Surgeon’s Advisory, made
no attempt to collect it. Second, the Hack, Steer report did not contain a value for the
goodwill of the practice. According to Agin, an accepted standard, the Goodwill
Registry, provides a value for the goodwill of such practices, and he added $171,000 for
this value. Third, Agin testified that the husband realized or collected about 70 percent
of his receivables, and not 30 percent as the Hack, Steer report indicated. Finally, after
speaking with the wife and one of the husband’s former employees, Agin opined that the
practice takes in approximately $200,000 in cash each year that is not reported.
Combining all of the foregoing, along with the assets of the practice, Agin opined that
the total assets of the practice totaled $693,874, and after deducting for liabilities, he
opined that the fair market value of the practice was $679,000. Agin additionally
testified that excluding the imputed unreported additional cash revenue, the fair market
value of the practice is $486,330.
{¶25} Proceeding to the husband’s case, the husband presented testimony from
Steve Steer (“Steer”), a C.P.A. with Hack, Steer. Steer testified that he used the asset
method of valuation. He assessed financial information from the husband’s practice,
including the depreciation schedules, payables, long-term debts, and equipment values.
Steer also researched the values of comparable practices and visited the Youngstown
office. Steer testified that he considered depreciation expenses, tax effect of the income,
receivables, and the value of inventory on hand. He deducted $220,000, a debt that the
practice owes the husband, a bill for $67,650 for website development, a $40,000 debt
owed to Surgeon’s Advisory, taxes, and also determined there was no value for the
goodwill of the practice. Steer then opined that the practice has a fair market value of
$16,300.
{¶26} Steer admitted on cross-examination, however, that the global trend shows
an increase in the performance of plastic surgeries, and the husband’s own income had
increased from 2007 to 2008. Steer did no checks to determine whether the husband was
voluntarily suppressing his income during the pendency of the divorce or had hidden
assets, and some of the equipment values were provided by the husband without
independent valuation. Steer also admitted that, although the husband told him that he
had received no distributions in 2010 and 2011, the husband did in fact receive
distributions, a form of payments in 2010. Steer also excluded the husband’s consulting
income from laser companies. Finally, Steer admitted that the IRS would consider the
family’s lifestyle to determine whether all of the income was being reported or not.
{¶27} The husband testified on his own behalf and stated that he opened the
Youngstown office in 1988. He rented additional, smaller offices in Cleveland and
Akron. He stated that 10-15 percent of his gross receipts are in the form of cash. In
2006, he reported earnings of $146,904. In 2008, he reported wages of $333,709. In
2009, he reported wages of $148,305.
{¶28} The husband admitted that in 2002, he deposited approximately $40,000 into
a bank account in Sarasin, Switzerland, but he stated that this was for purposes of
conducting international business. He stated that he inherited $50,000 from his parents’
estate and $30,000 from his uncle’s estate that he invested, but he did not have records
from those inheritances. The husband further claimed that his business had suffered due
to the economic downturn and also due to the wife’s domestic abuse allegations.
{¶29} The husband’s accountant, Stephen Higgins (“Higgins”), testified that the
husband’s medical practice is a Subchapter S corporation (“S corporation”), so it does not
pay corporate income tax, but instead provides a Schedule K1 to the shareholder for his or
her individual tax return. In 2010, the corporation had gross receipts of $1,096,082.
The corporation then listed deductions of $404,212, and net income of $155,000. Some
of the husband’s expenses are paid through the corporation, however, and are either
charged to the corporation or reclassified as personal disbursements to him.
{¶30} Higgins further testified that the husband and wife had filed joint returns,
but he acknowledged that he had not received a signed authorization from the wife
consenting to the joint filing.
{¶31} Higgins further testified that in 2010, the husband had wages of $148,044,
interest income of $11,107, dividends of $98,875, a loss of $372, income from the S
corporation of $157,725, and other income of $12,908, for a total of $422,287. Under
these calculations, the husband has income of $15,742 per month.
{¶32} On cross-examination, Higgins acknowledged that if cash receipts were not
recorded, they would not be reflected in the husband’s income tax returns, and that
consulting income should also be included within the corporate income. Higgins was
also unaware of any losses from the “Centurion Development/Ashford Park L.L.C.” real
estate transaction.
{¶33} Vocational expert Barbara Burke testified that she conducted an
employability assessment on the wife. She stated that the wife obtained a marketing
degree in 1985 and had worked for about 14 months during the marriage. Burke testified
that the wife has very good verbal skills and interacts well with others. She opined that
the wife was capable of working as a receptionist, customer service representative, or
school secretary and could earn between $20,000 to $25,000 per year.
{¶34} Finally, the wife’s attorney testified regarding attorney fees. He testified
that he was retained in 2010 and represented the wife from that date to the present. He
charged $400 per hour but his rate increased to $450 in 2011. He bills $250 for
associates and $125 for paralegals. He described the efforts exerted in obtaining the
husband’s personal and corporate tax records, locating assets, and ascertaining the
husband’s income and the value of the practice. The firm worked on the case for a total
of 762.13 hours and had total expenditures, including attorney fees and expenses of
$298,654.
{¶35} On February 17, 2012, the trial court issued its final decree in the matter, a
thoughtful and meticulous 48-page judgment entry with detailed findings of fact and
well-reasoned conclusions of law. In relevant part, the trial court concluded that the
value of the husband’s medical practice is $227,277. The court also found that the
present value of the “Centurion Development/Ashford Park L.L.C.” real estate project
remained $350,000. The court additionally concluded that the wife’s $265,450
inheritance had become commingled, but the court separated it from the marital estate and
awarded this sum to the wife. The court concluded, however, that the husband had not
properly proven his claim that he received $80,000 in inheritances.
{¶36} The trial court applied the factors set forth in R.C. 3105.171(F), and
awarded the husband $3,414,908 of the marital estate (including the medical practice, the
“Centurion Development/Ashford Park L.L.C.” investment, a portion of the American
Funds and the majority of the Morgan Stanley funds), and awarded the wife $3,642,340
of the marital estate (including portions of the American Funds and the Morgan Stanley
funds, and all of the Vanguard funds).
{¶37} The court also concluded that the wife could be expected to earn
approximately $20,000 per year, and that the husband’s income for purposes of
determining spousal support, is $400,000 per year. The trial court ordered the husband
to pay the wife $12,000 per month in spousal support for 90 months, or 7.5 years.
Finally, the court considered additional evidence on the issue of attorney fees and
awarded the wife an additional $75,000 for attorney fees.
{¶38} The wife appeals and assigns four errors for our review. The husband
cross-appeals and assigns eight errors for our review. We will address the parties’
assignments of error together where they share a common basis in the record or in the
law.
{¶39} The wife’s first assignment of error states:
The trial court erred as a matter of law [and abused its discretion] in its
determination of spousal support in the amount and duration of the support
order.
{¶40} The husband’s fourth assignment of error in his cross-appeal states:
The trial court erred by awarding Mrs. Gentile unreasonable and
inappropriate spousal support and child support, which included an
extrapolation of Guideline Support, private school tuition, and related
expenses, extraordinary expenses of the child, mortgage payments on two
properties, retroactive support, and attorney fees, all contrary to R.C.
3105.18(B) and R.C. 3119.04(B).
{¶41} The wife insists that she is entitled to a greater award and an indefinite
award, in light of the duration of the marriage and the parties’ significant assets. The
husband, on the other hand, complains that the award is too high and the child support
award is too high, given the other assets awarded to the wife.
Spousal Support
{¶42} As a general matter, we review spousal support issues under an abuse of
discretion standard. See Dunagan v. Dunagan, 8th Dist. No. 93678, 2010-Ohio-5232, ¶
12. So long as the decision of the trial court is supported by some competent, credible
evidence going to all the essential elements of the case, we will not disturb it. Neumann
v. Neumann, 8th Dist. No. 96915, 2012-Ohio-591, citing Masitto v. Masitto, 22 Ohio
St.3d 63, 66, 488 N.E.2d 857 (1986).
{¶43} In determining whether to grant spousal support and in determining the
amount and duration of the payments, the trial court must consider the factors listed in
R.C. 3105.18. Robinson v. Robinson, 8th Dist. No. 97933, 2012-Ohio-5414. The
factors the trial court must consider 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; their standard of living; inability to seek
employment outside the home; 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).
{¶44} The trial court is not required to comment on each statutory factor; the
record need only show that the court considered the statutory factors when making its
award. Neumann at ¶ 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
statutory factors and if the judgment contains detail sufficient 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. Daniels v. Daniels, 10th Dist. No. 07AP-709,
2008 Ohio App. LEXIS 772 (Mar. 4, 2008), citing Schoren v. Schoren, 6th Dist. No.
H-04-019, 2005-Ohio-2102.
{¶45} In this matter, the trial court, in pages 21-28 of its analysis, separately
addressed each of the factors set forth in R.C. 3105.18 in relation to the evidence
presented at trial. Applying R.C. 3105.18( C)(1)(a),(b), (f), (h), and (k), the court found
that the parties’ minor child was 16 years old, and that based upon the wife’s current
education and skills she was capable of working outside the home and had the potential to
earn approximately $20,000 per year. The court noted that the husband had a thriving
medical practice, and the court concluded that his income is approximately $400,000.
This figure reflected the court’s rejection of the wife’s claim that the husband had failed
to report additional cash skimmed from the practice, noting that “perhaps [the husband]
did skim some cash. However, there is no way this court can determine how much.”
The court did note, however, that many of the husband’s expenses are paid through the
corporation, that the husband’s income from 2003 to 2009 had fluctuated from $320,000
to $690,000, and that in the period of the divorce proceedings, the husband’s 2010 and
2011 income had dropped.
{¶46} Pursuant to R.C. 3105.18(C)(1)(c), the court noted that the wife is 50 years
old and has back problems, and that the husband is 54 years old and is in good health.
The trial court identified the parties’ retirement benefits and divided them equally, as
required pursuant to R.C. 3105.18(C)(1)(d). In accordance with R.C. 3105.18(
C)(1)(e),(g), (i), (j), and (m), the court observed that the parties had been married for 25
years, enjoyed a “very nice upper middle class standard of living,” had substantial assets
that generate income, interest, and dividends, and that the wife “certainly was [the
husband’s] partner” in attaining the marital assets. Pursuant to R.C. 3105.18(C)(1)(l),
the court addressed the tax consequences, observing that the spousal support would be a
deduction for the husband, income for the wife, and that the husband was awarded the
dependency deduction for the minor child. Based upon all of the foregoing, the trial
court awarded the wife $12,000 per month in spousal support for 7.5 years.
{¶47} From the foregoing, the decision of the trial court is well supported in the
record, and there is competent, credible evidence going to all of the statutory elements for
establishing a spousal support order. Therefore, we find no abuse of discretion in
connection with this award. The wife insists, however, that under pending legislation,
House Bill 348, she would be entitled to receive spousal support indefinitely because the
marriage lasted over 25 years. We will not apply pending legislation that is not presently
in effect, so we reject this argument. Further, insofar as the husband complains that he
was ordered to make the mortgage payments, we note that the order actually indicates that
each party shall pay 50 percent of the mortgages taxes and expenses for the Solon and
Bradenton homes. This claim therefore lacks support in the record.
Child Support
{¶48} A trial court has broad discretion to calculate child support and, absent an
abuse of discretion, an appellate court will not disturb a child support order. Pauly v.
Pauly, 80 Ohio St.3d 386, 390, 1997-Ohio-105, 686 N.E.2d 1108.
{¶49} In general, the amount of child support calculated using the child support
guidelines and worksheet is rebuttably presumed to be the correct amount of child
support, although the trial court may deviate from that amount. R.C. 3119.03; Marker v.
Grimm, 65 Ohio St.3d 139, 601 N.E.2d 496 (1992), paragraph one of the syllabus.
However, when the parents’ income exceeds $150,000, R.C. 3119.04(B) “leaves the
determination entirely to the court’s discretion.” Brownlee v. Brownlee, 8th Dist. Nos.
97037 and 97105, 2012-Ohio-1539. In Brownlee, this court explained:
R.C. 3119.04(B) expressly prohibits a trial court from awarding less than
the amount computed under the basic child support schedule and applicable
worksheet corresponding to a combined gross income of $150,000 unless
the court finds that “it would be unjust or inappropriate and would not be in
the best interest of the child, obligor, or obligee to order that amount.”
This court has consistently held that in determining child support
obligations pursuant to R.C. 3119.04, trial courts must proceed on a
case-by-case basis and generally do not have to state reasons for doing so.
Keating v. Keating, 8th Dist. No. 90611, 2008-Ohio-5345, ¶ 84. Further,
“the statute does not require any explanation of its decision unless it awards
less than the amount awarded for combined incomes of $150,000.”
Brownlee at ¶ 26, [quoting Cyr v. Cyr, 8th Dist. No. 84255, 2005-Ohio-504, ¶ 54].
{¶50} In this matter, the court correctly observed that “the combined gross income
of the parents is significantly greater than $150,000 per year” and that support was
therefore to be determined on a case-by-case basis. The court noted that the child attends
University School. Considering the needs and standard of living of the minor child, the
court concluded that a fair, just, and equitable award is $2,096.56 per month if private
health insurance was provided, and $2,063.91 per month without private insurance. The
trial court’s award is well supported in the record and we find no abuse of discretion.
{¶51} The wife’s first assignment of error and the husband’s fourth assignment of
error are without merit.
{¶52} The wife’s second assignment of error states:
The trial court erred and abused its discretion in failing to find that
[husband] engaged in financial misconduct by failing to make a distributive
award to [wife] due to [husband’s] improper conduct.
{¶53} The husband’s sixth assignment of error in his cross-appeal states:
The trial court erred by making an inequitable, unjust and unequal division
of marital property based upon consideration of “marital fault” in violation
of R.C. 3105.171(C)(1) and bias toward [husband] as demonstrated by
inconsistent and improper evidentiary rulings.
{¶54} The husband’s eighth assignment of error in his cross-appeal states:
The trial court erred by awarding retroactive spousal support to [the wife]
when she unilaterally withdrew $75,000 from her son’s custodial account
and her bank accounts at the time of filing for divorce and without ever
having accounted for disposition of [those] funds.
{¶55} A trial court has broad discretion to make distributive awards to a spouse,
pursuant to R.C. 3105.171(E), in order to compensate for the financial misconduct of the
other spouse. Hvamb v. Mishne, 11th Dist. No. 2002-G-2418, 2003-Ohio-921, ¶ 14,
citing Lassiter v. Lassiter, 1st Dist. No. C-010309, 2002-Ohio-3136. See also
MacDonald v. MacDonald, 8th Dist. No. 96099, 2011-Ohio-5389. Under R.C.
3105.171(E), financial misconduct includes the dissipation, concealment, destruction, or
fraudulent disposition of assets. R.C. 3105.171(E)(3). Typically, the offending spouse
will either profit from the misconduct or intentionally defeat the other spouse’s
distribution of marital assets. Hammond v. Brown, 8th Dist. No. 67268, 1995 Ohio App.
LEXIS 3975 (Sept. 14, 1995).
{¶56} In this matter, the wife insisted that the husband had concealed the $350,000
investment and had also concealed cash income. The court concluded that it “is
inconceivable that anyone could invest $350,000 without any paperwork or prospectus
indicating what the investment was or how much he had actually invested.” The court
also noted that despite the fact that the husband insisted that this investment had no
present value, he did not claim it as a tax loss. Nonetheless, the court concluded that
“there was not sufficient evidence for the Court to find there was economic misconduct.”
The court also found “no real evidence” of the total of any skimmed and unreported cash.
We find no abuse of discretion. Although the husband had acted deceptively in relation
to the $350,000 investment, in the end, he did not profit from his actions or defeat the
wife’s distribution. Similarly, while the record is clear that the husband accepted cash at
the practice, the trial court did not abuse its discretion insofar as it refused to impute
unreported income to him.
{¶57} As to the husband’s complaint that the wife depleted $75,000 from the son’s
bank account, the evidence of record clearly indicated that the wife used this sum to pay
household and family expenses and also paid attorney fees related to the motion for
support pendente lite. No marital fault was established in relation to this sum.
{¶58} As to the husband’s claim that the trial court was biased against him, we
note that such challenges cannot be raised in an appellate court and must instead be raised
under the provisions of R.C. 2701.03, which requires an affidavit of prejudice to be filed
with the Supreme Court of Ohio. Fisher v. Fisher, 8th Dist. No. 95821,
2011-Ohio-5251. Courts of appeals lack authority to void the judgment of a trial court
on such basis. Id.{¶59} The wife’s second assignment of error and the husband’s sixth and eighth
assignments of error are without merit.
{¶60} The wife’s third assignment of error states:
The trial court erred as a matter of law and abused its discretion by using an
improper value of Otolaryngology Head and Neck Consultants, PC, Inc.
{¶61} The husband’s third assignment of error in his cross-appeal states:
The trial court erred in valuing [husband’s] medical practice at $227,277 by
admitting opinion testimony by [wife’s] witness without a proper
foundation, by including “goodwill” as a divisible asset, and by arriving at a
conclusion not supported by any evidence in the record or valuation method
contrary to Evidence Rules 702 and 703.
{¶62} A trial court must generally assign and consider the values of marital assets
in order to equitably divide those assets. See Hightower v. Hightower, 10th Dist. No.
02AP-37, 2002-Ohio-5488, ¶ 22. There is no specific way for the trial court to
determine valuation. Kapadia v. Kapadia, 8th Dist. No. 94456, 2011-Ohio-2255, citing
Crim v. Crim, 5th Dist. No. 2007 AP 06 0032, 2008-Ohio-5367; Focke v. Focke, 83 Ohio
App.3d 552, 615 N.E.2d 327 (2d Dist.1992); Baker v. Baker, 83 Ohio App.3d 700, 615
N.E.2d 699 (9th Dist.1992). Courts have recognized several methods for valuing a
business, including: (1) straight capitalization; (2) capitalization of excess earnings; (3)
the IRS method (know at the “formula” approach), which subtracts a reasonable rate of
return on tangible assets and salary from average earnings; (4) market value; and (5)
buy-sell agreements. See Kuper v. Halbach, 10th Dist. No. 09AP1099, 2010-Ohio-3020,
¶ 13. Moreover, in ascertaining the value of a business, a trial court has discretion to
weigh the testimony provided by the parties’ valuation experts. Bryan v. Bryan, 8th Dist.
No. 97817, 2012-Ohio-3691.
{¶63} 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. Focke; James v.
James, 101 Ohio App.3d 668, 656 N.E.2d 399 (1st Dist.1995).
{¶64} In this matter, both the expert for the wife and the expert for the husband
used the net asset approach to determine the fair market value of the practice. The wife’s
expert opined that the practice was worth $679,000, and the husband’s expert testified
that it was worth $16,300. The trial court noted that the wife’s expert had not considered
a $220,000 loan that the husband had given to the practice, and had not deducted a
$40,000 debt owed to Surgeons Advisory. The trial court subtracted $220,000 from the
value of the practice, then included this same sum as an additional asset of the parties.
The court also determined that the Surgeons Advisory amount was not a true liability
because this debt was three years old and no efforts were made to collect upon it. The
trial court also noted that the husband’s expert attributed no additional goodwill value to
the practice, whereas the wife’s expert testified that the Goodwill Registry provides a
value of $171,000 for such practices. The trial court accepted this figure, but it did not
credit the wife’s expert’s contention that the practice earned an additional $200,000 each
year in unreported cash. The trial court then determined that the practice had a total of
$333,071 in assets, $171,000 in goodwill, and $204,300 in debt, $72,494 in liabilities,
bringing its total value to $227,277. The trial court carefully considered all of the
evidence of record in deriving each of its calculations. Based upon all the relevant facts
and circumstances, the court did not abuse its discretion in establishing the fair market
value of the husband’s medical practice.
{¶65} The wife’s third assignment of error and the husband’s third assignment of
error are without merit.
{¶66} The wife’s fourth assignment of error states:
The trial court erred as a matter of law and abused its discretion to the
prejudice of [the wife] for failing to award [the wife] all of her attorney fees
and litigation expenses.
{¶67} The husband’s fifth assignment of error in his cross-appeal states:
The trial court acted contrary to R.C. 3105.73 by ordering [the husband] to
pay $75,000 toward [the wife’s] legal fees. After having awarded [the
wife] nearly $4,000,000 of liquid assets and unreasonable and inappropriate
spousal and child support that exceeds his ability to pay.
{¶68} Our review of the award of attorney fees is limited to determining (1)
whether the factual considerations upon which the award was based are supported by the
manifest weight of the evidence, or (2) whether the domestic relations court abused its
discretion. Neumann, 8th Dist. No. 96915, 2012-Ohio-591, at ¶ 6, citing Gourash v.
Gourash, 8th Dist. Nos. 71882 and 73971, 1999 Ohio App. LEXIS 4074 (Sept. 2, 1999),
and Oatey v. Oatey, 83 Ohio App.3d 251, 614 N.E.2d 1054 (8th Dist.1992).
{¶69} Pursuant to R.C. 3105.73(A), a court may award all or part of reasonable
attorney fees and litigation expenses to either party if the court finds the award equitable.
In determining whether such an award 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(B);
Mlakar v. Mlakar, 8th Dist. No. 98194, 2013-Ohio-100.
{¶70} Here, the trial court noted that this “was a very complex trial,” and that it
was difficult to comb through thousands of records and understand the operation of the
medical practice. In a very detailed and thoughtful analysis, the court addressed all of
the parties’ disputed issues and considered all of their assets. The court observed that the
case involved “a great deal of discovery and hard work,” that the wife’s counsel had to
consult with experts and appraisers, and that the husband was not cooperative in
providing some of the documents. The trial court identified the factors set forth in R.C.
3105.73, Rule 1.51(A) of the Rules of Professional Conduct, and Loc.R. 21(B) of the
Court of Common Pleas of Cuyahoga County, Domestic Relations Division. The court
then awarded the wife $75,000 for her attorney fees, noting that this was approximately
25 percent of her total fees and expenses.
{¶71} From the foregoing, we find no abuse of discretion. The wife’s fourth
assignment of error and the husband’s fifth assignment of error are without merit.
{¶72} The husband’s first assignment of error in his cross-appeal states:
The trial court erred by awarding [the husband] a failed real estate
investment with no value as a $350,000 asset, contrary to R.C. 3105.171(C).
{¶73} Valuing property involves factual inquiries, requiring an appellate court to
apply a manifest weight of evidence standard of review. Kapadia, 8th Dist. No. 94456,
2011-Ohio-2255, ¶ 24. An appellate court will not reverse a trial court’s valuation if it is
supported by some competent, credible evidence. Id., citing Haynes v. Haynes, 8th Dist.
No. 92224, 2009-Ohio-5360.
{¶74} In this matter, the trial court noted that there was no evidence regarding the
present value of the $350,000 “Centurion Development/Ashford Park L.L.C.”
investment, other than the husband’s contention that the investment had no value. The
court was skeptical of the husband’s claims regarding this asset and observed that it “is
inconceivable that anyone could invest $350,000 without any paperwork or prospectus
indicating what the investment was or how much he had actually invested.” The trial
court then found it to be an asset of the marriage with a value of $350,000, which was the
cash put into the project. From the foregoing, we conclude that there is ample competent
and credible evidence supporting the trial court’s valuation of this asset. We therefore
find the husband’s first assignment of error to be without merit.
{¶75} The husband’s second assignment of error in his cross-appeal states:
The trial court erred by awarding [the wife] $265,450 merely because she
had inherited that amount of money more than twenty years prior to trial,
without requiring evidence of the continued existence of any separate
property and without requiring tracing as mandated by R.C.
3105.17(A)(6)(B).
{¶76} Prior to January 1, 1991, courts recognized the doctrine of transmutation, or
the process by which property that would otherwise be separate is converted into marital
property. Frederick v. Frederick, 11th Dist. No. 98-P-0071, 2000 Ohio App. LEXIS
1458 (Mar. 31, 2000). Effective January 1, 1991, however, the legislature adopted R.C.
3105.171(A)(6)(b) which provides:
The commingling of separate property with other property of any type does
not destroy the identity of the separate property as separate property, except
when the separate property is not traceable.
{¶77} This statute supplanted the doctrine of transmutation. Frederick.
Pursuant to R.C. 3105.171(A)(6)(b),
[t]he act of commingling is no longer determinative. Instead, the
traceability of separate property is the paramount concern. In enacting
R.C. 3105.171, the General Assembly was codifying the view that if the
right to hold separate property is to be meaningful, then the classification of
property as marital or nonmarital must be determined by the source of
contributions. Therefore, the only scenario by which transmutation may
still occur under the current provisions of R.C. 3105.171 is a situation
wherein a spouse is not able to trace his or her separate property.
Frederick.
{¶78} The party attempting to prove that the asset is traceable separate property
must establish such tracing by a preponderance of the evidence. Debevec v. Debevec,
11th Dist. No. 2002-P-0126, 2004-Ohio-2927, ¶ 17, quoting Price v. Price, 11th Dist. No.
2000-G-2320, 2002-Ohio-299.
{¶79} Therefore, the wife’s $265,450 inheritance that was later invested by the
husband was not “transmuted” into marital property. Further, the wife met her burden of
tracing the funds to her separate property by a preponderance of the evidence because she
and her brother, the executor of the estate, established that these funds came from the
estate. Further, the wife credibly testified that after she deposited the money into the
parties’ Key Bank account, the husband withdrew the money. It was undisputed that the
husband handled all of the parties’ finances. Therefore, the trial court did not abuse its
discretion regarding this sum as the wife’s separate property. Accord Tochtenhagen v.
Tochtenhagen, 11th Dist. No. 2009-T-0011, 2010-Ohio-4557, and Iacampo v.
Oliver-Iacampo, 11th Dist. No. 2011-G-3026, 2012-Ohio-1790.
{¶80} The husband’s second assignment of error in his cross-appeal is without
merit.
{¶81} The husband’s seventh assignment of error in his cross-appeal states:
The trial court erred by limiting the circumstances under which the spousal
support obligation of a physician in a one[-]person practice can be modified
pursuant to R.C. 3105.18(E).
{¶82} In this assignment of error, the husband complains that the trial court erred
in ordering the spousal support award to be “subject to further order of the Court [i.e.,
modifiable] only in the event [husband’s] health is such that he cannot work.”
{¶83} In accordance with R.C. 3105.18(E)(1), a court does not have jurisdiction to
modify the amount or terms of the alimony or spousal support unless the court determines
that the circumstances of either party have changed and unless the divorce decree or the
incorporated separation agreement contains a provision specifically authorizing the court
to modify the amount or terms of alimony or spousal support.
{¶84} R.C. 3105.18(F) further provides:
For purposes of divisions (D) and (E) of this section, a change in the
circumstances of a party includes, but is not limited to, any increase or
involuntary decrease in the party’s wages, salary, bonuses, living expenses,
or medical expenses.
{¶85} In Abramovich v. Abramovich, 9th Dist. No. 19154, 1999 Ohio App. LEXIS
29779 (June 23, 1999), the court explained that it is more appropriate for a court to
modify an award of indefinite duration (usually terminating only upon the death or
remarriage of the obligee spouse), than it is for a court to modify a limited-time award.
The Court explained:
An indefinite award is more appropriately modified, since a greater range of
unforeseen changes in circumstance may occur.
The former are considered to be more in the form of a property settlement
despite their denomination as “spousal support.” See, McClusky v. Nelson
(1994), 94 Ohio App.3d 746, 748-50, 641 N.E.2d 807, discussing Dailey v.
Dailey (1960), 171 Ohio St. 133, 167 N.E.2d 906, and Vaught v. Vaught
(1981), 2 Ohio App.3d 264, 441 N.E.2d 811. A court will generally be
without any authority to modify an award for a term of years out of
deference to the obligee spouse’s financial security from the award. An
indefinite award is more appropriately modified, since a greater range of
unforeseen changes in circumstance may occur.
{¶86} Therefore, in light of this distinction R.C. 3105.18(E) is inapplicable to
provisions for spousal support that terminate on a specific date. See Hasselbach v.
Hasselbach, 6th Dist. No. S-00-004, 2000 Ohio App. LEXIS 5557 (Nov. 30, 2000), citing
Keck v. Keck, 7th Dist. No. 98 CA 247, 2000 Ohio App. LEXIS 3691 (Aug. 10, 2000).
{¶87} In this matter, the spousal support award was for 7.5 years. Therefore, R.C.
3105.18(E) is inapplicable. In any event, we find no abuse of discretion, as the court
further indicated that the “support [award] cannot be modified upward in the event
[husband] makes more than $400,000 per year.”
{¶88} This assignment of error is without merit.
{¶89} The wife’s assignments of error are without merit, and the husband’s
assignments of error in his cross-appeal are without merit.
{¶90} Judgment affirmed.
It is ordered that ordered that appellee and appellant share 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.
MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR