[Cite as Johnson v. Johnson,
2019-Ohio-1024.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
JENNIFER L. JOHNSON :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-36
:
v. : Trial Court Case No. 2016-DR-171
:
DAVID L. JOHNSON : (Appeal from Common Pleas Court-
: Domestic Relations Division)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 22nd day of March, 2019.
...........
JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
DAVID L. JOHNSON, P.O. Box 364, Fairborn, Ohio 45324
Defendant-Appellant, Pro Se
.............
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FROELICH, J.
{¶ 1} David L. Johnson appeals a final judgment and decree of divorce entered by
the Greene County Common Pleas Court, Domestic Relations Division. The judgment of
the trial court will be affirmed in part and reversed in part, and the matter will be remanded
for further proceedings.
Factual Background and Procedural History
{¶ 2} David L. Johnson (“David”) and Jennifer L. Johnson (“Jennifer) were married
on October 20, 2001, and are the parents of two minor children. Since 2001, Jennifer has
worked for United Healthcare, where she is paid an annual salary plus occasional
bonuses. David has been self-employed since 2001 as the sole proprietor of a computer
repair and custom computer building business. Jennifer filed a complaint for divorce on
July 29, 2016. The parties agreed to use June 28, 2016, the date that David vacated the
marital residence, as the date of their separation for purposes of the division of property.
{¶ 3} A hearing to determine the parties’ respective incomes and to identify and
categorize their assets and liabilities took place before the trial court over three dates:
June 27, 2017; August 22, 2017; and October 24, 2017. On August 2, 2018, the court
issued a final judgment and decree of divorce that incorporated the parties’ agreement
regarding custody and parenting time, then set forth the court’s determinations regarding
the payment of child support and spousal support, the division of the parties’ assets and
liabilities, and the allocation of attorneys’ fees and costs.
{¶ 4} David’s pro se appeal from that judgment raises 13 assignments of error:
1) [The trial court] abused [its] discretion and acted contrary to the law
when [it] ruled that [David] must pay [Jennifer]’s attorney’s fees when
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[Jennifer] did not seek attorney’s fees at the final hearing.
2) [The trial court] abused [its] discretion and did not provide an equitable
award of attorney fees.
3) [The trial court] erred when [it] did not give [David] credit for the $750 he
paid [Jennifer] for attorney fees.
4) [The trial court]’s ruling that [David]’s attitude and behavior were
responsible for 100% of [Jennifer]’s attorney fees is against the manifest
weight of evidence.
5) After ruling that [Jennifer]’s credit card bills went 100% with the joint
marital home, [the trial court] erred and abused [its] discretion when [it]
did not use this liability in calculation [sic] the parties[’] equity in the
marital home.
6) [The trial court]’s ruling that [Jennifer]’s credit card bills went 100% with
the joint marital home is against the manifest weight of evidence.
7) [The trial court] acted contrary to ORC 3119 when [it] calculated
[David]’s income using his gross self employment profit instead of his
net self employment income.
8) [The trial court] made a mathematical error in calculating [David]’s
annual income for the purposes of the divorce calculations. $1,200 per
month x 12 months is $14,400 not $24,000. Therefore, [the trial court]
erred in [its] follow on [sic] calculations that used the wrong number for
[David]’s annual income.
9) [The trial court] erred when [it] did not rule on [David]’s $6,000
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inheritance and the equitable division of [Jennifer]’s Morgan Stanley
account which had a balance of $1,933 on the date of separation.
10) [The trial court] erred when [it] ruled that $1,500 of [Jennifer]’s 401K
account, $300 of [Jennifer]’s ESSP1 account, and $1,744.43.43 [sic] of
[Jennifer]’s roll[-]over IRA account are separate property due to pre-
marital contributions.
11) [The trial court] erred when [it] did not provide an equitable distribution
of the parties[’] 2016 Federal tax refunds.
12) [The trial court] both erred and abused [its] discretion when [it] allowed
credit card payments of $3,885, made after the date of separation by
[Jennifer] on her personal credit cards, to be assessed against [David].
13) The total credit card balances of $38,204.72 on the date of separation
are inconsistent with exhibits and testimony.
ANALYSIS
{¶ 5} For ease of analysis, we have grouped David’s 13 assignments of error into
four broad categories: 1) challenges to the trial court’s classification of property as marital
or separate property (Assignments of Error #9-10); 2) challenges to the trial court’s
allocation and/or distribution of assets and liabilities (Assignments of Error #5-6, #11-13);
3) challenges to the trial court’s calculation of David’s income (Assignments of Error #7-
8); and 4) challenges to the trial court’s allocation of attorney’s fees (Assignments of Error
#1-4).
1
Presumably this refers to Jennifer’s Employee Stock Purchase Plan, or “ESPP,”
account. (See 6/27/16 Hearing Tr., p. 183).
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Assignments of Error #9, 10 – Marital versus Separate Property
{¶ 6} In his tenth assignment of error, David challenges the trial court's decision to
treat as Jennifer’s separate property certain amounts held in accounts in Jennifer’s name.
Specifically, David urges that the trial court erred by accepting without corroboration
Jennifer’s testimony that $1,500 in her 401(k) retirement account, $300 in her ESPP2
account, and the entire $1,744.43 balance of her roll-over individual retirement account
(“IRA”) represented contributions she made to those accounts before she and David were
married. Similarly, David’s ninth assignment of error asserts that the trial erred by failing
to rule on whether $6,000 that David deposited into Jennifer’s checking account was
David’s separate property inherited from his “Aunt Becky,” and whether $1,932.79 held in
Jennifer’s Morgan Stanley account was marital property that should have been divided
with David. Because these assignments implicate the same standard of review and the
same legal principles governing the division of property, we will address them together.
a. Standard of Review
{¶ 7} “A trial court has broad discretion when dividing marital property.” Williams v.
Williams, 2018-Ohio-611,
106 N.E.3d 317, ¶ 7 (2d Dist.), citing Bisker v. Blake,
69 Ohio
St.3d 608, 609,
635 N.E.2d 308 (1994), citing Berish v. Berish,
69 Ohio St.2d 318,
432
N.E.2d 183 (1982). We review property distributions in divorce proceedings for an abuse
of that discretion. Rucks v. Moore, 2d Dist. Montgomery No. 27928,
2018-Ohio-4692, ¶
7, citing Loughman v. Loughman, 2d Dist. Montgomery No. 25835,
2014-Ohio-2449, ¶
22. An abuse of discretion occurs when the trial court's decision is unreasonable,
arbitrary, or unconscionable.
Id., citing Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
2
See fn.1, above.
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450 N.E.2d 1140 (1983).
{¶ 8} Despite the trial court’s broad discretion regarding the division of property, “a
trial court’s classification of property as marital or separate must be supported by the
manifest weight of the evidence.” Bakle v. Bakle, 2d Dist. Greene No. 2009 CA 9, 2009-
Ohio-6003, ¶ 16, citing Mays v. Mays, 2d Dist. Miami No. 2000-CA-54, 2001 WL 1219345,
*6 (Oct. 12, 2001). “When we consider manifest weight arguments, we ‘review the
evidence, and … determine whether, when appropriate deference is given to the factual
conclusion of the trial court, the evidence persuades us by the requisite burden of proof.’ ”
Id., citing Cooper v. Cooper, 2d Dist. Greene App. Nos. 2007-CA-76 and 2007-CA-77,
2008-Ohio-4731, ¶ 25; Howard v. Howard, 2d Dist. Montgomery No. 16542,
1998 WL
127526 (Mar. 20, 1998).
{¶ 9} “A trial court must indicate the basis for its division of marital property in
sufficient detail to enable a reviewing court to determine whether the award is fair,
equitable, and in accordance with the law.” Janis v. Janis, 2d Dist. Montgomery No.
23898, 2011-Ohio-3731, ¶ 43, citing Young v. Young, 2d Dist. Clark Nos. 08CA59 and
08CA61,
2009-Ohio-3504, ¶ 6, and R.C. 3105.171(G). Additionally, a trial court’s failure
to consider the factors set forth at R.C. 3105.171(F) to guide the division of marital
property is an abuse of discretion.
Mays at *6.
b. Law Applicable to Division of Property in Divorce
{¶ 10} “When dividing married parties’ assets and liabilities upon divorce, a court
must first determine what is marital property and what is not.” Bergman v. Bergman, 2d
Dist. Montgomery No. 25378, 2013-Ohio-715, ¶ 27. The trial court must classify specific
property as marital or separate, and where appropriate, must distribute separate property
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to the owner. Id., citing R.C. 3105.171(B) and (D). The court’s classification must be
supported by competent, credible evidence.
Id., citing
Mays at *3; Renz v. Renz, 12th
Dist. Clermont No. CA2010-05-034,
2011-Ohio-1634, ¶ 17.
{¶ 11} The classification of property is governed by R.C. 3105.171. Per R.C.
3105.171(A)(3)(a), “marital property” includes:
(i) All 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;
(ii) All interest that either or both of the spouses currently has in any real or
personal property, 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;
(iii) Except as otherwise provided in this section, all income and appreciation
on separate property, due to the labor, monetary, or in-kind contribution of
either or both of the spouses that occurred during the marriage.
{¶ 12} In contrast, under R.C. 3105.171(A)(6)(a), “separate property” is defined, in
pertinent part, as “all real and personal property and any interest in real or personal
property that is found by the court to be any of the following:”
(i) An inheritance by one spouse by bequest, devise, or descent during the
course of the marriage;
(ii) Any real or personal property or interest in real or personal property that
was acquired by one spouse prior to the date of the marriage;
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(iii) Passive income and appreciation acquired from separate property by
one spouse during the marriage
…
(vii) Any gift of real or personal property or of an interest in real or personal
property that is made after the date of the marriage and that is proven by
clear and convincing evidence to have been given to only one spouse.
{¶ 13} “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.” R.C. 3105.171(A)(6)(b). Additionally, “the holding of
title to property by one spouse individually or by both spouses in a form of co-ownership
does not determine whether the property is marital or separate property. Instead, the
couple’s total circumstances are reviewed.” Bergman, 2d Dist. Montgomery No. 25378,
2013-Ohio-715, at ¶ 30, quoting Nuding v. Nuding, 3d Dist. Mercer No. 10-97-13,
1998
WL 856923 (Dec. 7, 1998). See also R.C. 3105.171(H).
{¶ 14} The proponent of a claim that specific property is separate, not marital,
bears the burden to prove that claim by a preponderance of the evidence. Bergman at ¶
31, citing Peck v. Peck,
96 Ohio App.3d 731, 734,
645 N.E.2d 1300 (12th Dist.1994);
Snyder v. Snyder, 2d Dist. Clark No. 2002-CA-6,
2002 WL 1252835, *3. “Oral testimony
as evidence, without corroboration, may or may not satisfy the burden.”
Bergman at ¶ 31,
quoting Maloney v. Maloney,
160 Ohio App.3d 209,
2005-Ohio-1368,
826 N.E.2d 864, ¶
23 (2d Dist.). As traceability presents a question of fact, we must defer to the trial court
on that issue, “and the court’s decision on the matter will not be reversed as against the
manifest weight of the evidence when it is supported by competent, credible evidence.”
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Maloney at ¶ 23, citing C.E. Morris Co. v. Foley Constr. Co.,
54 Ohio St.2d 279,
376
N.E.2d 578 (1978).
{¶ 15} “Once it is proven that specific property was the separate property of one of
the spouses at, or after, the time of the marriage, the burden shifts to the other spouse to
prove, by clear and convincing evidence, that the property, or some interest therein, has
been given to the other spouse.” Bergman at ¶ 31, quoting
Snyder at *3, citing Helton v.
Helton,
114 Ohio App.3d 683, 685,
683 N.E.2d 1157 (2d Dist.1996).
c. Jennifer’s 401(k), ESPP and IRA accounts
{¶ 16} Jennifer presented evidence that her 401(k) account through Fidelity
Investments had a balance of $65,790.59 as of June 30, 2016. (6/27/17 Hearing Tr., p.
180). Although she was unable to obtain records about that account from 2001, she
testified that any deposits made to that account from January 2001 (when the account
was opened) to October 2001 (when she and David were married) would be pre-marital
property, which she estimated to amount to about $1,500.00. (Id., p. 181). David
presented no contrary evidence.
{¶ 17} The trial court acted within the scope of its discretion by accepting Jennifer’s
uncorroborated oral testimony as sufficient proof that $1,500 of the 401(k) account’s
$65,790.59 balance was Jennifer’s separate property. See Bergman, 2d Dist.
Montgomery No. 25378, 2013-Ohio-715, at ¶ 31. We cannot say that the trial court acted
unreasonably by crediting to Jennifer as pre-marital property less than 2.3 percent of the
balance accumulated in that account over a 16-year period. Because competent, credible
evidence supports the trial court’s factual determination, we must defer to the trial court
on that issue. Maloney,
160 Ohio App.3d 209,
2005-Ohio-1368,
826 N.E.2d 864, at ¶ 23.
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David’s assignment of error is not well taken as to Jennifer’s 401(k) account.
{¶ 18} The trial court also did not abuse its discretion by making a similar
determination as to Jennifer’s ESPP account. Jennifer testified that her ESPP account
was opened in January 2001 and that she contributed approximately $300 to that
account before the date of her October 2001 marriage. (6/27/17 Hearing Tr., pp. 183-
184). She presented evidence that the balance in the ESPP account was $12,568 on
June 30, 2016. (Id., p. 184). Although the trial court indicated during the hearing that
Jennifer’s $300 estimate was “not going to be good enough” (id.), it held otherwise in the
final judgment entry, finding “that $300 of [Jennifer’s] ESPP account is [her] separate
property due to pre-marital contributions” she made. (8/2/18 Final Judgment and Decree
of Divorce, p. 20).
{¶ 19} Again, we cannot say that the trial court acted unreasonably or arbitrarily by
determining that less than 2.4 percent of the ESPP’s $12,568 balance accumulated over
16 years was Jennifer’s separate, pre-marital property. We must defer to the trial court’s
factual determination, which is supported by competent, credible evidence. See Bergman
at ¶ 31;
Maloney at ¶ 23.
{¶ 20} Similarly, as to Jennifer’s roll-over IRA, she presented evidence that the
balance in that account was $1,744.43 when it was rolled over to create a new Fidelity
account in July 2016. (6/27/27 Hearing Tr., p. 191). Jennifer testified that the entirety of
that balance came from contributions to a 401(k) plan she had through a prior employer,
before 1999 and therefore before her marriage. (Id., pp. 186-188). She rolled the original
401(k) plan into a Morgan Stanley account upon leaving that prior employer in 1999, then
later rolled the Morgan Stanley account into an account with Fidelity Investments in order
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to avoid Morgan Stanley’s high fees. (Id., pp. 188-192). Jennifer testified that she made
no withdrawals from or contributions to that account after 1999. (Id., pp. 191-193). The
trial court credited her testimony, ruling “that the entire balance of the rolled-over Fidelity
account is [Jennifer’s] separate property.” (8/2/18 Final Judgment and Decree of Divorce,
p. 21). The trial court did not abuse its discretion in making that factual determination
based on competent and undisputed evidence in the record, and we will not disturb the
trial court’s conclusion. See Bergman at ¶ 31;
Maloney at ¶ 23.
{¶ 21} Our conclusion regarding the trial court’s treatment of Jennifer’s roll-over
IRA also disposes of David’s contention that the trial court “did not rule on … the
equitable division of [Jennifer’s] Morgan Stanley account.” (Assignment of Error #9). The
record demonstrates that the proceeds of Jennifer’s Morgan Stanley account were what
was “rolled over” to create the Fidelity roll-over IRA that the trial court found to be entirely
Jennifer’s separate property. (See 8/2/18 Final Judgment and Decree of Divorce, p. 21).
David’s suggestion that the trial court “did not rule on” that issue is mistaken. Furthermore,
to the extent that David’s argument challenges the discrepancy between the Morgan
Stanley account’s “balance of $1,933 on the date of separation” (see Assignment of Error
#9) and the successor Fidelity account’s balance of $1,744 cited in the trial court’s ruling
(see 8/2/18 Final Judgment and Decree of Divorce, p. 21),3 that discrepancy is irrelevant.
Regardless of the exact amount in that account on the parties’ separation date, the trial
court found that none of it was marital property, and David therefore was not entitled to
3
Jennifer explained the lower balance when the account was transferred to Fidelity in
July 2016 was “because I was being charged a lot of fees from Morgan Stanley” (6/27/17
Hearing Tr., p. 191) – the very reason she made that transfer. (See id. at p. 188).
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share in that property. Any error in that regard was harmless, and his allegation of error
on that basis is overruled.
d. David’s Inheritance
{¶ 22} David also contends that the trial court erred by failing to address David’s
claim that $6,000 placed into Jennifer’s checking account was David’s separate property,
derived from $7,031.04 that he inherited “from his Aunt Becky in January 2017.”4 (Brief
of Appellant, p. 21). What appears to be the first reference to that purported “inheritance”
appears during a discussion about “Defendant’s Exhibit A” presented at the June 27, 2017
hearing:
[David’s counsel]: Your Honor, … [t]he list that is, that was just
handed to you as Exhibit A was the list of property that my client wanted
from the home or at least from the marriage. It includes inherited property.
This is not a comprehensive list of all the personal property of the
parties. This list does not include much of the personal property that my
client was willing to forgo and allow his wife to retain.
[Jennifer’s counsel]: In regard to the inheritance – inherited property,
Your Honor, if I may, it was my understanding that there was some property
garnished [sic] 5 from a family member; however, that property wasn’t
garnished [sic] through a will, so I think calling it inheritance is a very loose
definition of the word inheritance.
4
The testimony David cites indicates that he actually received that money in January
2016. (See 10/24/17 Hearing Tr., p. 69).
5
Given the context, it appears that counsel meant the property was acquired or
“garnered” from a family member, not “garnished” in the legal sense of that word (i.e.,
seized to settle a debt).
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It was a, as a family, everybody went in, took what they wanted and
came home with it. There was no specific thing willed or inherited to any
individual in this marriage.
(Emphasis added.) (6/27/17 Hearing Tr., pp. 21-22).
{¶ 23} Given the parties’ lack of agreement about the division of personal property
at that time, the trial court indicated that “we’ll reset the matter for a further hearing on this
property issue ….” (Id., p. 25). The court then continued:
And the fact that somebody wants to testify and says this was
inherited, isn’t going to be enough. That burden will not be satisfied by
somebody saying, I inherited this.
I need some evidence, some proof it’s in the list of property received
from an estate, etc., etc., so enough said on that.
(Id., p. 26).
{¶ 24} When Jennifer testified during the reconvened hearing on August 22, 2017,
the following information regarding David’s alleged inheritance was elicited:
[David’s counsel]: Ma’am, did David contribute to any expenses of the
household during the period of time of your accumulation of the credit card
debt?
[Jennifer]: During our entire marriage, yes. I mean –
[David’s counsel]: In fact, didn’t he get money when his Aunt Becky passed
away?
[Jennifer]: Yes.
[David’s counsel]: And did he contribute that to the marital finances?
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[Jennifer]: Yes.
[David’s counsel]: And how much was that, do you recall?
[Jennifer]: I do not recall.
…
[David’s counsel]: (presents Defendant’s Exhibit S) Do you recognize that
document or those documents?
[Jennifer]: Yes.
[David’s counsel]: Is that the, is that check representative of the amount that
David got due to the passing of his Aunt Becky?
[Jennifer]: I’m assuming.
[David’s counsel]: Do you recall him getting the amount for the passing of
his Aunt Becky?
[Jennifer]: Yes, but I don’t know what it – I don’t recall what it is. So this is
what the checks say –
[David’s counsel]: And you don’t dispute that then?
[Jennifer]: No.
[David’s counsel]: Do you see the last page of the second page of that,
which is where it went into your account?
[Jennifer]: These did not go into my account. He transferred money into my
account.
[David’s counsel]: Okay. So the checks, the check itself was not deposited
directly in your account. He gave you that money after he deposited it into
his account; is that what you’re saying?
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[Jennifer]: He transferred money to me. These checks were –
…
– not deposited to me. So he gave me money, yes.
…
[Trial Court]: What’s the date on the check?
[Jennifer]: The checks were dated January 22nd of 2016.
…
[David’s counsel]: And what is the amount of that check?
[Jennifer]: There are two, $4,060.05 and $2,970.99.
[David’s counsel]: And how was that money used once it went into your
account, ma’am?
[Jennifer]: I would have used it to pay things that needed to be paid.
[David’s counsel]: Which would have included day-to-day living expenses
or even possibly contributions toward the outstanding debt of the family; is
that right?
[Jennifer]: I cannot comment on what it went toward. I – it went toward
paying bills. ….
(8/22/17 Hearing Tr., pp. 102-106).
{¶ 25} Despite the foregoing testimony, David directs us only to the transcript of
the October 24, 2017 hearing, which includes the following discussion regarding the
subject of his “inheritance”:
[Trial Court]: (to David’s counsel) Okay. First of all, anything on the divorce
issues that you want another shot at presenting …?
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[David’s counsel]: Yes, Your Honor, I would call David Johnson to the stand
again.
[Trial Court]: Okay. This is new information and not something that we have
gone over before?
[David’s counsel]: … [T]here was a $6,000 inheritance that my client
received from his aunt who passed away. I don’t believe that there was a
will involved, and I do remember discussing this to some extent.
[Trial Court]: Let me see what notes I’ve got.
…
[Trial Court]: Inheritance checks, both are dated 1-22-16. One was
$4,060.05. The other one was $2,970.99.
…
[Trial Court]: Mr. Johnson said he transferred some of the money to Ms.
Johnson, and she paid bills with it.
[David]: Well, your Honor, she never paid any credit card bills with it, so I
gave her $6,000.00 to pay credit cards [sic] bills. She never paid any credit
card bills. She’s only paying monthly minimums, if that.
Four months prior to separation, I handed her the checks. Once,
again, prior to contemplation of divorce, she talked me into giving her
$6,000.
[Trial Court]: The point is, … we’ve been over this issue, and we don’t
need anymore on it.
(10/24/17 Hearing Tr., pp. 68-70).
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{¶ 26} Pursuant to R.C. 3015.171(A)(6)(a)(i), “an inheritance is generally
considered a party’s separate property.” St. Germaine v. St. Germaine, 2d Dist. Greene
No. 2009 CA 28, 2010-Ohio-3656, ¶ 16. However, “spouses can change separate
property to marital property based on actions during the marriage.” Helton,
114 Ohio
App.3d 683, 685,
683 N.E.2d 1157. “The most commonly recognized method for effecting
this change is through an inter vivos gift of the property from the donor spouse to the
donee spouse.” (Emphasis sic.) Id.; see also Miller v. Miller, 6th Dist. Sandusky No. S-
19-19,
2018-Ohio-5285, ¶ 10 (“Parties can transmute separate property into marital
property by means of an inter vivos gift,” particularly “where … there has been effected
a reduction of the parties’ joint obligation ….”).
{¶ 27} “The essential elements of an inter vivos gift are ‘(1) an intention on the part
of the donor to transfer the title and right of possession of the particular property to the
donee then and there and (2), in pursuance of such intention, a delivery by the donor to
the donee of the subject-matter of the gift to the extent practicable or possible, considering
its nature, with relinquishment of ownership, dominion and control over it.’ ” (Emphasis
sic.) Helton at 685-686, quoting Bolles v. Toledo Trust Co.,
132 Ohio St. 21,
4 N.E.2d 917
(1936), paragraph one of the syllabus. Under our jurisprudence, the donee bears the
burden to show “by clear and convincing evidence that the donor made an inter vivos
gift.” (Emphasis sic.) Id. at 686; accord Snyder v. Snyder, 2d Dist. Clark No. 2002-CA-6,
2002-Ohio-2781, *3 (“Once it is proven that specific property was the separate property
of one of the spouses at, or after, the time of the marriage, the burden shifts to the other
spouse to prove, by clear and convincing evidence, that the property, or some interest
therein, has been given to the other spouse.”).
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{¶ 28} Here, the trial court’s final judgment nowhere specifically addresses the
issue of David’s claimed inheritance. (See 8/2/18 Final Judgment and Decree of Divorce,
generally and at p. 9, under “Personal Property” heading). Accordingly, while the trial
court did not treat the amount of that claimed inheritance as David’s “separate property”
for purposes of the parties’ property distribution, we are unable to discern from the record
whether that result was due to an oversight, the trial court’s conclusion that the property
David received following his aunt’s death did not qualify as an “inheritance” within the
meaning of R.C. 3015.171(A)(6)(a)(i) (see 6/27/17 Hearing Tr., p. 22),6 the trial court’s
conclusion that the evidence clearly and convincingly demonstrated that David made an
inter vivos gift from that inheritance by transferring $6,000 into a checking account bearing
Jennifer’s name alone, from which she paid marital bills, or some other reason.
{¶ 29} We conclude that the trial court abused its discretion by failing to articulate
its reasons, consistent with R.C. 3015.171, for treating the amount of David’s claimed
inheritance as marital property and not as his separate property. David’s ninth assignment
of error therefore is sustained only as to that narrow issue, and this matter will be
remanded for that limited purpose.
Assignments of Error #5, 6, 11, 12, 13 – Allocation of Liabilities/Assets
{¶ 30} David’s assignments of error within the next grouping all raise challenges
to the trial court’s allocation or distribution of the parties’ liabilities and assets. Specifically,
David deems “against the manifest weight of the evidence” the trial court’s determination
that the parties’ cumulative credit card debt existing on the date of their separation all
6
There, Jennifer’s attorney questioned whether the property David received after Aunt
Becky’s death fell within the definition of “inheritance,” since that property did not pass
“through a will.”
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stemmed from expenditures for improvements to the marital home. (Assignment of Error
#5). He also contends that, having made that determination, the trial court further erred
and abused its discretion by failing to factor in the amount of that credit card liability when
calculating the parties’ equity in the marital home (Assignment of Error #6), and by
“assess[ing] against” David payments made by Jennifer “on her personal credit cards”
after the date of the parties’ separation (Assignment of Error #12). Furthermore, David
maintains that the total amount the trial court determined to be owed on the parties’ credit
cards was “inconsistent with exhibits and testimony” (Assignment of Error #13); and that
the trial court erred by “not provid[ing] an equitable distribution of the parties[’] 2016
Federal tax returns.” (Assignment #11).
a. Standard of Review/Applicable Law
{¶ 31} As noted above, we review a trial court’s decisions regarding the distribution
of property for an abuse of discretion. Rucks, 2d Dist. Montgomery No. 27928, 2018-
Ohio-4692, at ¶ 7. When considering manifest-weight arguments, we review the evidence
to “determine whether, when appropriate deference is given to the factual conclusion[s]
of the trial court, the evidence persuades us by the requisite burden of proof.” Bakle, 2d
Dist. Greene No. 2009 CA 9, 2009-Ohio-6003, at ¶ 16. Additionally, the trial court must
provide sufficient detail about its property division to allow us “to determine whether the
award is fair, equitable, and in accordance with the law.” Janis, 2d Dist. Montgomery No.
23898,
2011-Ohio-3731, at ¶ 43.
b. Assignment #11 - the Parties’ 2016 Tax Refunds
{¶ 32} The trial court’s final judgment stated in pertinent part with regard to the
parties’ income tax refunds for 2015 and 2016:
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The parties each filed Married Filing Separately for tax years 2015
and 2016. [David] requested that he be awarded one-half of [Jennifer’s]
2015 tax refund and a portion of [Jennifer’s] 2016 tax refund for the part of
the year they continued to reside together (January to June 2016). [David]
agreed that [Jennifer] was entitled to [the] same from his tax refunds for
2015 and 2016. [Jennifer] admitted on the record that if her income was
marital, her refund was also marital.
According to Defendant’s Exhibit J, [David]’s 2015 tax return, [David]
received a tax refund [that year] of $1,786.00. According to Defendant’s
Exhibit N, [Jennifer]’s 2015 tax return, [Jennifer] received a refund [that
year] of $6,741.00. According to Defendant’s Exhibit P, [David]’s 2016 tax
return, [David] owed $346 [in 2016]. No evidence was presented as to
[Jennifer]’s tax return from 2016.
The Court finds that the tax returns [sic]7 for tax year 2015 were
marital property. Therefore, each party is entitled to one-half (1/2) of the
other’s return [sic]. [Jennifer]’s portion of [David]’s return [sic] ($1,786.00 / 2
= $893.00) shall be used to offset the amount [Jennifer] owes [David]
($6,741.00 / 2 = $3,370.50). Accordingly, [Jennifer] is hereby Ordered to
pay [David] $2,477.50. …
(Emphasis added.) (8/2/18 Final Judgment and Decree of Divorce, pp. 11-12).
{¶ 33} David contends that the trial court was mistaken in stating that it had no
7
Presumably the trial court’s references in this paragraph to tax “returns” actually were
intended to mean tax “refunds.”
-21-
evidence regarding Jennifer’s 2016 tax return. He points to a portion of the record where
Jennifer presented into evidence “Plaintiff’s Exhibit 49,” identified as her “2016 Federal
Tax Return.” (6/27/17 Hearing Tr., pp. 152-153). David argues that the trial court erred by
not awarding him a portion of the refund that Jennifer was to receive for 2016, based on
that 2016 return.
{¶ 34} David further notes the trial court’s specific finding that David owed $346 in
taxes for 2016 (see 8/2/18 Final Judgment and Decree of Divorce, p. 12), and argues that
the trial court should have ordered Jennifer to pay a portion of that marital debt.
{¶ 35} Because it appears from the record that the trial court did have evidence of
the amount of Jennifer’s 2016 federal income tax refund, and that the trial court also failed
to direct Jennifer to reimburse David for one-half of that portion of his 2016 income tax
owed that was attributable to the months before the parties’ separated, David’s
Assignment of Error #11 is sustained. This matter will be remanded for the limited purpose
of having the trial court calculate and award to David the amount representing David’s
share of Jennifer’s 2016 tax refund for the period from January 1, 2016 through their June
28, 2016 separation date, plus Jennifer’s share of David’s 2016 tax indebtedness from
that same period.
c. Assignments #5, 6, 12 – Allocation of Credit Card Debt
{¶ 36} David contends that the manifest weight of the evidence does not support
the trial court’s conclusion that all of the parties’ credit card debt on their separation date
was attributable to expenditures they made as a couple toward the marital residence.
(Assignment of Error #6). In related arguments, he urges that the trial court erred by not
considering that credit card indebtedness when calculating the parties’ equity in the
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marital residence (Assignment #5), and by holding David accountable for a share of credit
card payments Jennifer made after the parties separated. (Assignment #12).
{¶ 37} On the subject of the parties’ credit card debts, the trial court’s final
judgment stated in part as follows:
The parties purchased the marital residence … in February, 2005.
[David] gutted the home pursuant to the parties’ plans to renovate the three-
story dwelling. Both parties testified that they purchased building materials
for the home, however the method of purchase is in dispute between the
parties. Also in dispute is whether [David] should be responsible for
reimbursing [Jennifer] for payments made on the credit cards since the
parties physically separated on June 28, 2016.
[Jennifer] testified that the parties used multiple credit cards to pay
for the [building] materials[,] which [cards] still carry significant balances,
and are currently in [Jennifer]’s name only. [Jennifer] testified that the
materials that were not used to renovate the home before the parties
separated remain in the marital residence. [David] testified that the majority
of the materials were purchased with his own personal credit cards, and
some materials were purchased with the equity line of credit and other credit
cards. [David] testified that the [four current] credit cards in dispute were
used for vacations, dining out, children’s expenses, the marital residence,
and [David’s] business. … [Jennifer] is asking the Court to allocate all of
the debt to [David] since he retained the renovation materials [by virtue of
remaining in the residence], or in the alternative split the debt equally
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between the parties. [Jennifer] also asks the Court to Order [David] to
reimburse [Jennifer] for her continued monthly payments on the credit card
debts since the parties separated in June, 2016. [David] is asking the Court
to allocate all of the debt to [Jennifer] because it is separate debt which was
not accumulated for home renovations.
[Jennifer] testified that she was not able to obtain credit card
statements going back to 2005 when the materials were originally
purchased. [She] also testified that the balances have been moved around
numerous times [among various credit cards] to avoid paying interest,
making it difficult to trace the origins of the current balances. [Jennifer]
testified that she managed the finances during the marriage and [she]
provided detailed testimony about the credit cards, as well as numerous
statements for all four cards [that had outstanding balances on the date the
parties separated]. [David]’s testimony disputed [Jennifer]’s claims about
the credit cards, but he presented no supporting evidence.
…
The Court found [Jennifer] to be a more credible witness throughout
the duration of the trial, especially in matters related to finance[s]. The Court
also found that [Jennifer] provided evidence to support her testimony about
the use of the credit cards. Therefore, the Court finds that the credit card
debts [for the four credit cards in dispute] were incurred for the purchase of
home renovation materials, and that the debts are marital. Since [David]
retained the marital residence and all used and unused renovation
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materials, the Court finds it equitable to hold [David] responsible for 100%
of the credit card debt. …
(8/2/18 Final Judgment and Decree of Divorce, pp. 12-15).
{¶ 38} The trial court noted that David had offered evidence showing that Jennifer
used one of the four disputed credit cards (“the Upromise card”) “for non-balance transfer
purposes,” but the court nonetheless concluded that David had “fail[ed] to demonstrate
that the current [Upromise] balance stems from non-renovation purposes.” (Id., pp. 13-
14). Instead, the court found the evidence showed that when Jennifer made purchases
on that card, those purchases “were paid off the following month. The remaining balance
as of the last statement provided shows the balance to be from balance transfers, not
purchases.” (Id., p. 14).
{¶ 39} Giving appropriate deference to the trial court’s findings of fact, we cannot
conclude that the trial court’s decision was against the manifest weight of the evidence.
See Bakle, 2d Dist. Greene No. 2009 CA 9, 2009-Ohio-6003, at ¶ 16. While David
undoubtedly disagrees with the trial court’s assessment of the parties’ credibility, he has
directed us to nothing in the record demonstrating that the court’s factual conclusions
were objectively wrong. “The trial court was entitled to decide which testimony to credit,
since it was in the position to view the witnesses and assess their credibility.” See
Edwards v. Edwards, 2d Dist. Montgomery No. 25309,
2013-Ohio-117, ¶ 40. Moreover,
we must defer to the trial court’s findings of fact as to the traceability of assets or liabilities,
and will not reverse the trial court’s decision if “it is supported by competent, credible
evidence.” See Maloney,
160 Ohio App.3d 209,
2005-Ohio-1368,
826 N.E.2d 864, at ¶
23.
-25-
{¶ 40} Because the trial court detailed evidence, particularly testimony by Jennifer,
that supports its conclusion that the parties’ earlier purchases of home renovation
materials were the source of the credit card debt remaining at the time of their separation,
David’s sixth assignment of error is overruled.
{¶ 41} In a related argument, David’s fifth assignment of error proposes that the
amount of the parties’ outstanding credit card debt should have been deducted from the
value of the marital home when the parties’ equity in that property was calculated. He
maintains that if the subject credit card debt were incurred for expenses related to the
real property, as the trial court found, that debt was “no different” than a home equity loan
or a mortgage. In effect, David seeks to have the parties’ unsecured credit card debt
treated as though it were secured debt. Significantly, he cites no legal authority for that
argument.
{¶ 42} David’s approach would, as he acknowledges, result in the parties’ marital
residence having “negative equity” – i.e., David would both keep the house and collect a
substantial sum from Jennifer for doing so. It fell within the scope of the trial court’s broad
discretion for the court to decline to apply a “negative equity” approach that would require
Jennifer to pay David more than $19,000 simply because she surrendered the house and
he retained it. See Williams, 2d Dist. No. 2017-CA-47, 2018-Ohio-611,
106 N.E.3d 317,
at ¶ 7.
{¶ 43} Additionally, the record shows that some portion of the outstanding credit
card debt relates to tangible property possessed by David but not yet affixed as part of
the house when the parties separated. As the trial court noted, Jennifer testified that not
all of the building materials purchased actually had been installed in the residence by
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June 28, 2016. Those unused materials “remain in the marital residence” and were
acquired by David. It was neither unreasonable nor arbitrary for the trial court to decide
that Jennifer should not be required to pay David for half the value of materials that he
might choose to sell or to use to increase the value of a home in which Jennifer no long
had any financial interest.8 David’s fifth assignment of error is overruled.
{¶ 44} In his twelfth assignment of error, also related to the issue of credit card
debt, David objects to the trial court’s order that David reimburse Jennifer for all payments
she made toward that debt after the parties separated but before the divorce decree was
entered. In the final judgment order, after remarking on the combined balance of the credit
card debt as of June 28, 2016, the trial court stated:
[Jennifer] testified that she made all the [credit card] payments in the [year
between the separation date and the June 27, 2017 hearing], totaling
$2,548.92. When the parties returned for the second day of trial on August
22, 2017, [Jennifer] presented evidence that she paid an additional
$1,335.92 on the credit cards since the first day of trial. [Jennifer] paid a
total of $3,884.83 since the physical separation on June 28, 2016. [Jennifer]
testified that [David] did not contribute any money towards the payment of
the debt, which [David] did not dispute.
(8/2/18 Final Judgment and Decree of Divorce, p. 14). The court then ordered David to
reimburse Jennifer for the full amount of her post-separation payments toward the credit
card debt. (Id., p. 15).
8
Furthermore, the record contains no evidence distinguishing between the value of the
building materials actually installed in the home during the parties’ marriage and the value
of the unused materials that remain in David’s possession.
-27-
{¶ 45} David does not dispute the trial court’s findings as to the amount of
Jennifer’s post-separation credit card payments, but argues that he should not be
responsible for paying what he characterizes as Jennifer’s “personal” credit card debt.
The trial court’s explicit findings as to the nature of that debt, however, belie David’s
characterization. Having concluded above that the trial court did not err by attributing all
of the parties’ credit card debt to the cost of building materials that accrued to David’s
benefit, we likewise conclude that the court did not err by requiring David to reimburse
Jennifer for credit card payments she made toward that debt after the parties’ official
separation and before the divorce decree was issued. David’s twelfth assignment of error
is overruled.9
d. Assignment of Error #13 – Calculation of Credit Card Debt
{¶ 46} David’s final assignment of error takes issue with the amount of the parties’
outstanding credit card debt as calculated by the trial court. David asserts that the trial
court erred by relying on the closing balances shown on statements for each credit card
“instead of the actual balance on June 28, 2016.” Based on his own calculations, David
urges that instead of the $38,204.72 figure cited by the trial court (see 8/2/18 Final
Judgment and Decree of Divorce, p. 14), the amount due on the four credit card accounts
9
David’s secondary argument under this assignment of error, suggesting that Jennifer
somehow received “double credit” for the payments in dispute (see Brief of Appellant, p.
24), apparently is based on evidence that either is missing from the record or to which
David has not directed us. In either event, we decline to address that argument. See White
v. White, 2d Dist. Clark No. 2013-CA-86, 2014-Ohio-1288, ¶ 8 (“We are not required to
comb through the record on appeal to find the parts of the record that bear upon an
assignment of error when the party assigning the error has failed to direct our attention to
the place in the record demonstrating the error.”) and State v. Ishmail,
54 Ohio St.2d 402,
377 N.E. 500 (1978), paragraph one of the syllabus (“A reviewing court cannot add matter
to the record before it, which was not a part of the trial court’s proceedings, and then
decide the appeal on the basis of the new matter.”).
-28-
as of June 28, 2016 was $34,732. (Brief of Appellant, p. 25).
{¶ 47} Nothing in the record establishes that the trial court erred as David
suggests. Jennifer presented into evidence for each of the four credit cards in dispute the
account statement closest in time to the parties’ separation date of June 28, 2016. She
testified that on July 6, 2016, the balance on the Discover account was $7,005.26 (6/27/27
Hearing Tr., pp. 208-209); on July 4, 2016, the balance on the Bank of America account
was $7,217.00 (id., pp. 217-218); on July 6, 2016, the balance on the Upromise account
was $11,358.95 (id., p. 221); and on June 21, 2016, the balance on the Chase Slate
account was $10,923.00 (Id., pp. 223-224). Those figures total $36,504.20, a number
marginally lower than the $38,204.72 reflected in the final judgment (see 8/2/18 Final
Judgment and Decree of Divorce, p. 14) and marginally higher than the $34,732 David
advances. (Brief of Appellant, p. 25).
{¶ 48} Irrespective of those differences, however, we concluded above that the
trial court acted within the scope of its discretion in “hold[ing] David responsible for 100%
of the credit card debt.” (See 8/2/18 Final Judgment and Decree of Divorce, p. 15).
Significantly, the trial court’s actual judgment did not order David to pay a specific amount
of credit card debt; rather, it generically “ORDERED [David] to pay the entire balance of
the marital credit card debt.” (Id.). Accordingly, irrespective of the exact amount of that
remaining debt, David is responsible for paying all of it. He has directed us to nothing to
suggest that any discrepancy among the foregoing amounts is attributable to spending
by Jennifer after the separation date that should not be regarded as marital debt. Absent
such evidence, the trial court did not err by ordering him to pay the entirety of the parties’
remaining credit card debt, whatever that amount may be. His thirteenth assignment of
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error is overruled.
Assignments of Error #7, 8 – Calculation of David’s Income
{¶ 49} David’s seventh and eighth assignments of error contend that the trial court
erred in calculating David’s past income and projected future income. As to his future
earning potential, David asserts that the trial court “made a mathematical error” in
imputing to David an annual income of $24,000. (Assignment of Error #8). As to his past
earnings, David urges that the trial court incorrectly considered David’s “gross self income
profit” instead of his “net self employment income.” (Assignment of Error #7).
a. Standard of Review/Applicable Law
{¶ 50} A trial court “enjoys broad discretion” with regard to awards of both spousal
support and child support. Blevins v. Blevins, 2d Dist. Greene No. 20018-CA-23, 2019-
Ohio-297, ¶ 8, 47. An abuse of discretion occurs when the trial court’s decision regarding
support is “unreasonable, arbitrary or unconscionable.” Hagar v. Sabry, 2d Dist.
Montgomery No. 27967, 2018-Ohio-4230, ¶ 10, quoting Blakemore,
5 Ohio St.3d 217,
219,
450 N.E.2d 1140.
{¶ 51} In determining whether spousal support is appropriate and reasonable, as
well as its amount, nature, and duration, a trial court must consider a variety of factors.
Baskin v. Baskin, 2d Dist. Montgomery No. 27373, 2017-Ohio-7632, ¶ 10. These factors
include: 1) the parties’ income from all sources; 2) their relative earning abilities; 3) their
ages and physical, mental, and emotional conditions; 4) the retirement benefits of the
parties; 5) the duration of the marriage; 6) the extent to which it would be inappropriate
for a party to seek employment outside the home (particularly if a custodian of a minor
child of the marriage); 7) the parties’ standard of living during the marriage; 8) their relative
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educations; 9) the parties’ relative assets and liabilities; 10) the contribution of each party
to the education, training, or earning ability of the other party, including, but not limited to,
any party’s contribution to the acquisition of a professional degree of the other party; 11)
the time and expense necessary for the spouse who is seeking spousal support to acquire
education, training, or job experience so that the spouse will be qualified to obtain
appropriate employment; 12) the tax consequences, for each party, of an award of
spousal support; and 13) the lost income production capacity of either party that resulted
from that party's marital responsibilities. R.C. 3105.18(C)(1). The court also may consider
any other factor that it expressly finds to be relevant and equitable. R.C. 3105.18(C)(1)(n).
{¶ 52} “When considering the relative earning abilities of the parties in connection
with an award of spousal support, Ohio courts do not restrict their inquiry to the amount
of money actually earned, but may also hold a person accountable for the amount of
money [that] a ‘person could have earned if he made the effort.’ ” Kraft v. Kraft, 2d Dist.
Montgomery No. 25982, 2014-Ohio-4852, ¶ 21, quoting Miller v. Miller, 2d Dist.
Montgomery No. 14540,
1994 WL 730560, *4 (Dec. 28, 1994). “Because R.C. 3105.18(C)
permits inquiry into a party’s earning potential, Ohio courts often impute income to parties
who are voluntarily underemployed or otherwise not working up to their full earning
potential.” Miller at *4, citing, inter alia, Frost v. Frost,
84 Ohio App.3d 699,
618 N.E.2d
198 (10th Dist.1992).
{¶ 53} As to child support, “[t]he Ohio Revised Code provides a basic child support
schedule and a child support computation worksheet to be used when calculating the
amount of child support to be paid pursuant to a child support order.” Blevins, 2d Dist.
Greene No. 20018-CA-23, 2019-Ohio-297, at ¶ 17, citing R.C. 3119.021 and R.C.
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3119.022. The basic child support schedule and computation worksheet apply when the
parents’ combined gross income is between $6,600 and $150,000 per year.
{¶ 54} As to both spousal support and child support calculations, then, a parent’s
annual income is a critical starting point.
b. Assignment of Error #8 – Alleged Mathematical Error
{¶ 55} In projecting David’s annual income for purposes of calculating any support
obligations to be imposed, the trial court found “that using an annual income of $24,000
for [David] … ($1,200 per month x 12 months) is reasonable under [David’s] current
circumstances.” (Emphasis added.) (8/2/18 Final Judgment and Decree of Divorce, p. 4).
The record demonstrates that the trial court used the $24,000 figure as David’s income
for purposes of calculating the parties’ child support obligations. (See id., attached Child
Support Computation Worksheet, p. 1, line 1a and p. 2, line 7a).
{¶ 56} On appeal, David does not oppose the trial court’s imputing to him a $1,200
monthly income as “a realist[ic] goal,” but he points out that the trial court miscalculated
the annual income that would result from monthly earnings in that amount – i.e., “$1,200
a month for 12 month[s] is $14,400 in annual income,” not $24,000.
{¶ 57} Given that David’s observation is correct,10 we determine that this matter
should be remanded to the trial court to correct that computation error, and to further
10
We do not find persuasive Jennifer’s suggestion that the trial court intended to impute
to David an annual income of $24,000, with the numbers inside the parentheses being
simply “a clerical error” that does not merit reversal. (See Brief of Appellee, p. 17).
Elsewhere in the final judgment, the trial court proposed the same $1,200 monthly income
figure for David. (See 8/2/18 Final Judgment and Decree of Divorce, p. 4) (although David
“testified that he could earn $1,500 to $2,000 per month” under certain circumstances,
“[u]pon questioning by the Court, [David] admitted that $1,200 per month is a more
realistic income projection”).
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determine what revisions, if any, may be warranted in the parties’ respective spousal and
child support obligations, as well as any other obligations, as a result of David’s corrected
income figure. David’s eighth assignment of error is sustained.
c. Assignment of Error #7 –Income Figure Used to Calculate Child Support
{¶ 58} David contends that the trial court also erred by calculating David’s past
income for purposes of child support obligations “using his gross self-employment profit
instead of his net self-employment income.” According to David, because “gross profits
do not include operating expenses,” the trial court’s approach led to a “large disparity”
between David’s actual net income for 2011-2014 and the figures used by the trial court
to represent David’s earnings for those years.
{¶ 59} On that topic, the final judgment entry states as follows:
The evidence indicates that [David]’s gross profits [from his computer
business] totaled $45,959 in 2011 (Plaintiff’s Exhibit 18), $28,164 in 2012
(Plaintiff’s Exhibit 19), $22,925 in 2013 (Plaintiff’s Exhibit 20), and $16,030
in 2014 (Plaintiff’s Exhibit 21). [David]’s income has continued to decline
each year since 2011, for which the parties offered differing explanations.
{¶ 60} Despite reciting the above numbers as representing David’s past earnings,
however, the trial court did not rely on those figures in calculating David’s support
obligations in this case. Instead, as we noted with respect to David’s eighth assignment
of error, above, the trial court used a projected annual income of $24,000 for David to
compute the parties’ respective child support obligations. (See 8/2/18 Final Judgment and
Decree of Divorce, attached Child Support Computation Worksheet, p. 1, line 1a and p.
2, line 7a).
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{¶ 61} Pursuant to R.C. 3119.02:
In any action in which a court child support order is issued …, the court
… shall calculate the amount of the obligor’s child support obligation in
accordance with the basic child support schedule, the applicable worksheet,
and the other provisions of sections 3119.02 to 3119.24 of the Revised
Code. The court … shall specify the support obligation as a monthly
amount due and shall order the support obligation to be paid in periodic
increments as it determines to be in the best interest of the children. In
performing its duties under this section, the court or agency is not required
to accept any calculations in a worksheet prepared by any party to the
action or proceeding.
{¶ 62} Unless the parents’ “combined gross income” is less than $6,600 or more
than $150,000,11 child support is to be paid in accordance with the schedule codified at
R.C. 3119.021, based on calculations made in accordance with the worksheet found at
R.C. 3119.022. The applicable child support computation worksheet includes lines
designated specifically for calculating “self-employment income” by deducting “[o]rdinary
and necessary business expenses” and other costs from the “[g]ross receipts from
business.” Id.
{¶ 63} Here, however, the trial court did not use the numbers it recited as
representing David’s past income as the basis for calculating his future support
obligations. Indeed, the trial court left blank the worksheet section used to compute “self-
11
It is undisputed that the combined gross income of these parties falls within the specified
range.
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employment income” (see 8/2/18 Final Judgment and Decree of Divorce, attached Child
Support Computation Worksheet, p. 1, line 2), instead inserting the $24,000 figure as
representing David’s projected future annual income. (See id., p. 1, line 1a and p. 1, line
7a). Given that any error in the trial court’s statements about David’s past income12 had
no bearing on its calculations of the parties’ future support obligations, any such error was
harmless. See Hoch v. Carr, 9th Dist. Summit No. 26097, 2012-Ohio-1445, ¶ 7 (trial
court’s reference to facts not actually used to calculate support obligation was harmless
error); Carpenter v. Carpenter, 7th Dist. Noble Nos. 11 NO 387, 11 NO 388, 2012-Ohio-
4567, ¶ 23 (trial court’s error as to income figure used to compute child support is
harmless where party suffered no prejudice). See also Avery v. Avery, 2d Dist. Greene
Nos. 2002 CA 121, 2003 CA 1, 2002 CA 105,
2003-Ohio-4975 (in case for modification
of spousal and child support, erroneous admission of evidence was harmless where no
reason to believe it “in any way affected the trial court’s judgment”).
{¶ 64} David’s seventh assignment of error is overruled.
Assignments of Error #1, #2, #3 – Attorney’s Fees
{¶ 65} David contends that the trial court erred and/or abused its discretion in three
respects as to its award of attorney’s fees: 1) by awarding Jennifer fees even though she
did not request such fees at the final hearing (Assignment of Error #1); 2) by providing an
inequitable award of attorney’s fees (Assignment of Error #2); and 3) by failing to credit
David for $750 that he already had paid Jennifer for attorney’s fees. (Assignment of Error
#3).
12
We have not concluded whether the trial court’s past-earnings findings were erroneous,
as we need not resolve that question in order to rule on this assignment of error.
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{¶ 66} In awarding attorney’s fees to Jennifer, the trial court stated as follows:
[Jennifer] requests that she be awarded attorney fees totaling
$23,825.00. [She] presented an expert witness, [an experienced Dayton-
area attorney], who testified that the hourly rate and work performed by
[Jennifer]’s attorney were reasonable and consistent with local practice.
The Court finds … [David]’s attitude and behavior throughout the
proceedings to be the main cause for the prolonged litigation of this case. It
is apparent to the Court that [David] has been more interested in acting
defiantly and with hostility, which eventually culminated in three days of trial.
The Court notes that [David] rarely followed through on his assertions that
he would provide evidence to support his position on various issues,
specifically when it came to lost wages due to lack of transportation and
case law supporting his date of separation. Therefore, the Court finds it
reasonable to award Plaintiff $23,825.00 in attorney fees. …
(8/2/18 Final Judgment and Decree of Divorce, p. 18).
a. Standard of Review/Applicable Law
{¶ 67} A divorce court “may award all or part of reasonable attorney’s fees and
litigation expenses to either party if the court finds the award equitable.” R.C. 3105.73(A).
In determining whether an award of 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.” Id. The decision
whether to award attorney fees is within the trial court’s sound discretion and will not be
reversed absent an abuse of that discretion. Williams,
2018-Ohio-611,
106 N.E.3d 317,
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at ¶ 24, citing Janis, 2d Dist. Montgomery No. 23898, 2011-Ohio-3731, at ¶ 78, citing
Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 94456,
2011-Ohio-2255, ¶ 93.
b. Assignment of Error #1 – Failure to Request Fees
{¶ 68} David maintains that the trial court should not have awarded attorney’s fees
to Jennifer because she “did not seek attorney’s fees at the final hearing.” Furthermore,
he suggests that during the hearing on June 27, 2017, the parties “agreed in open court
to pay their own attorney fees for the divorce,” so that the trial court abused its discretion
by awarding fees despite that agreement.
{¶ 69} Notably, David cites no legal authority for the premise that a trial court may
not award attorney’s fees in a divorce action unless the receiving party made an explicit
request for such fees in his or her final hearing before the court. Neither does he cite
authority for the notion that a party who indicated an initial willingness to pay his or own
fees thereby waives the right to later seek reimbursement of fees if the matter becomes
unexpectedly protracted.
{¶ 70} Aside from those omissions as to the applicable law, we also do not accept
David’s characterization of the facts in the record. The transcript from the original hearing
date, to which David refers, does record a discussion with the trial court during which the
parties’ counsel indicated that attorney’s fees were not “in dispute” at that time, with each
party intending to pay his or her own fees. (6/27/17 Hearing Tr., p. 35). By the third hearing
date nearly four months later, however, without objection from David, Jennifer presented
as an expert witness an attorney who testified to the reasonableness of the hourly rate
charged by Jennifer’s counsel and the number of hours expended on what the expert
termed “a very long divorce case” with “a lot of motions” and hearings, including multiple
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motions to show cause filed on Jennifer’s behalf. (10/24/17 Hearing Tr., pp. 49-67). The
record belies David’s suggestion that the expert’s testimony was limited to the
reasonableness of the fees charged relative to those show cause motions. Rather, the
expert testified about the entirety of the billing records of Jennifer’s counsel related to this
case.
{¶ 71} The presentation of that testimony during the final hearing conveyed
Jennifer’s desire to recover attorney’s fees, and thus also controverts David’s statement
that Jennifer “did not seek attorney’s fees at the final hearing.” Moreover, the trial court at
that time communicated its intent to consider awarding fees to Jennifer. Responding to
an objection from David’s counsel to the relevance and accuracy of the attorney’s fees
exhibit proffered by Jennifer, the court stated:
Relevance is certainly not a reason to object. I mean, I’ve got a
request for attorney fees in the original complaint for divorce, I believe.
The statute provides that I can award attorney fees at any point in
the proceedings …
…
[As to accuracy], I’m satisfied with the witness’s testimony, and I did
the math myself as far as what the hourly rates are based upon the charge
and the time involved.
…
So I’m satisfied …, so I’ll overrule that objection. It will be admitted,
and I will take into account all the relevant issues when awarding attorney
fees and make a decision on that one.
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(Emphasis added.) (Id., pp. 109-111).
{¶ 72} As David’s first assignment is supported by neither the facts nor the
applicable law, it is overruled.
c. Assignment of Error #2 – Equitableness of Fee Award
{¶ 73} David next contends that the fee award to Jennifer was not “equitable” in
light of the parties’ significant income discrepancy. While Jennifer’s higher earnings are
one factor that the trial court was to consider in making a fee award under R.C.
3105.73(A), “the conduct of the parties” is an equally important consideration under that
statute. Here, the trial court unequivocally expressed its view that David’s “attitude and
behavior throughout the proceedings” was the primary reason that the expense of the
parties’ attorneys became so high. (8/2/18 Final Judgment and Decree of Divorce, p. 18).
Because the record supports the trial court’s conclusion that David engaged in blatantly
obstructive behavior, we defer to the trial court’s assessment of David’s “defian[ce]” and
“hostility” as warranting a fee award to Jennifer. See Williams, 2018-Ohio-611,
106
N.E.3d 317, at ¶ 29 (affirming fee award as “supported by the trial court’s finding that [one
former spouse] caused [the other former spouse] to incur unnecessary attorney fees”).
{¶ 74} In light of the trial court’s findings, we cannot say that the trial court abused
its discretion in ordering David to pay Jennifer’s fees in the amount of $23,825.00, and
David’s second assignment of error is overruled.
d. Assignment of Error #3 – Failure to Credit Prior Fee Payment
{¶ 75} Finally, David argues that the trial court erred by failing to credit him for $750
that he previously paid to Jennifer toward her attorney’s fees. The record does contain a
document in which David professes to have paid Jennifer that amount by check (from
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David’s father) dated May 25, 2017, “as reimbursement of [Jennifer’s] legal fees for the
contempt filing.” (Trial Court Docket #77). He argues that no credit for that payment
appeared on the attorney’s fees exhibit admitted into evidence since the payment was
made to Jennifer directly rather than to her attorney.
{¶ 76} It appears that the trial court may not have taken that alleged payment into
consideration in making its award of attorney’s fees. Accordingly, David’s third
assignment of error is sustained, and the matter will be remanded in order for the trial
court to consider whether David is due a credit in the amount of $750 toward the total
attorney fee award.
Conclusion
{¶ 77} The trial court’s judgment will be reversed: 1) as to the order for distribution
of property, for failing to articulate, consistent with R.C. 3015.171, why David’s claimed
inheritance was regarded as marital property and not as David’s separate property; 2) as
to the order regarding tax refunds/liabilities, for failing to order Jennifer to pay David both
one-half of that portion of Jennifer’s federal income tax refund for 2016 attributable to the
months before the parties separated and one-half of that portion of David’s $346 federal
income tax liability for 2016 attributable to the months before the parties separated; 3) as
to the orders for spousal support and child support, to accurately reflect the amount of
David’s imputed annual income, and to make any corresponding changes warranted in
the amount of spousal support and/or child support to be paid; and 4) as to the award of
attorney’s fees, for failing to address whether David should have been credited for a $750
payment previously made to Jennifer.
{¶ 78} This matter will be remanded for the limited purpose of addressing the
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foregoing four issues. The judgment will be affirmed in all other respects.
.............
DONOVAN, J. and HALL, J., concur.
Copies sent to:
Jay A. Adams
David L. Johnson
Hon. Steven L. Hurley
