[Cite as Jackson v. Jackson,
2024-Ohio-3134.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JOHN M. JACKSON : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Andrew J. King, J.
:
-vs- :
: Case No. 23 CAF 10 0095
TRACEY T. JACKSON :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 21 DR A 08
0478
JUDGMENT: Affirmed in part, Reversed in part and
Remanded
DATE OF JUDGMENT ENTRY: August 16, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN M. JACKSON PRO SE JACQUELINE KEMP
263 McCraney Lane 555 Metro Place North, Ste 300
Columbus, OH 43213 Dublin, OH 43017
Delaware County, Case No. 23 CAF 10 0095 2
Gwin, P.J.
{¶1} Appellant appeals the September 29, 2023 judgment entry of the Delaware
County Court of Common Pleas, Domestic Relations Division.
Facts & Procedural History
{¶2} Appellant John M. Jackson and appellee Tracey T. Jackson were married
on October 5, 1996. The parties have three children. Two of their children were
emancipated at the time of trial. Appellant filed a complaint for divorce against appellee
on August 26, 2021. The trial court issued a “mutual restraining order” on August 31,
2021. Appellant filed a motion to determine a de facto termination date of marriage and
requested the trial court set a de facto marriage termination date of May 1, 2021.
However, appellant later withdrew his motion.
{¶3} The trial in this case was originally scheduled for July 18, 2022. On July 12,
2022, appellant filed a motion to continue the trial. Appellee did not object to the
continuance. Accordingly, the trial court granted appellant’s motion and continued the
trial until February of 2023.
{¶4} The magistrate conducted the trial in this case on the following dates:
February 13, 15, 16, 17, 21, 22, and 23 of 2023. Prior to the start of the trial, the parties
engaged in discussions about stipulations, but were unable to reach an agreement.
However, on the second day of the trial, the parties agreed and stipulated on how to
distribute the personal property and how to sell the marital home.
{¶5} At the beginning of their marriage, both appellant and appellee worked.
When the parties had children and moved to Ohio, appellee no longer worked. Appellant
testified he wanted appellee to go back to work, but she refused. Appellee testified
Delaware County, Case No. 23 CAF 10 0095 3
appellant never asked her to go back to work; rather, the parties agreed that with the
amount needed for child care, it was cheaper for her to stay home. Despite any potential
disagreement on how the situation occurred, the result was that, until 2017, appellant
worked full-time and appellee was not employed outside the home. Each week, appellant
would provide appellee with a weekly allowance. Appellant described a situation in which
he provided appellee with a yearly budget that she was expected to maintain so she could
continue to be a stay-at-home parent. Appellee described a situation in which appellant
provided her with multiple spreadsheets each year, and had unrealistic expectations as
to how much it cost to raise a family with three children. Thus, she obtained credit cards
to provide food and what she thought was necessary to raise her children. At several
points throughout the marriage, appellant would stop appellee’s allowance if she
overspent. Appellant believes appellee should have relied on the money she was
supposed to be saving to continue any discretionary spending.
{¶6} In 2015 or 2016, appellee stated she grew tired of appellant’s strict budgeting
and what she believed was a constant focus on money that consumed their lives. Thus,
she left the home. Appellant offered what he felt was a fair compromise for her to return
to the home, i.e., appellee would be responsible for all “discretionary” spending. Both
parties agreed they did not discuss any financial information between themselves from
2017 through 2021. The parties continued to have disagreements, and appellee moved
out of the marital home in May of 2021. Appellee testified she informed appellant in 2016
that if he ever cut her off again, she would move out, and, when appellant “cut her off” in
May of 2021, she moved out.
Delaware County, Case No. 23 CAF 10 0095 4
{¶7} In August of 2022, appellant purchased a lot of land in Pickerington to enable
him to build a house. The cost of the lot was $159,000. Appellant testified he liquidated
a checking account of $33,000 to purchase the lot. He also utilized $68,000 from a JP
Morgan Chase investment account to purchase the lot. The JP Morgan Chase account
has $1,000 left in it. Finally, he took out a $50,000 loan from his Nationwide 401(K) to
purchase the lot. Appellant stated he was aware of the restraining order, but felt this was
not a violation of the restraining order because he did not dissipate assets. Appellee did
not know about the lot or the 401(K) loan until the beginning of the trial when appellant
provided her counsel with his proposed balance sheet.
{¶8} The parties stipulated to the amounts contained in appellant’s retirement
accounts: $790,630 for his 401(K), $325,000 for his pension, $56,180 for his deferred
compensation, $12,260 in his supplemental defined benefit plan, and $145,230 in a Merrill
Lynch plan. Appellant did not have the current values of appellee’s accounts, but utilized
the figures she provided for her retirement accounts.
{¶9} Appellant testified that in 2016, he split a TD Ameritrade investment account.
He transferred $49,000 to his personal checking account and $44,000 into appellee’s
personal checking account. Appellee stated this was appellant’s gesture of goodwill for
reconciliation. She testified she used the $44,000 for home repairs of the marital home,
a new water heater for the marital home, to pay for a sick dog, pay for vacations, and pay
to purchase items for their children.
{¶10} Appellant testified he established a 529 account for each of his daughters.
Appellant stated appellee went into the accounts and changed the phone number and
contact information on the accounts. Appellant wants the accounts to be marital and be
Delaware County, Case No. 23 CAF 10 0095 5
assigned to appellee because she made withdrawals from the accounts without his
knowledge. Appellant believes appellee had no authorization to take the money out of
the accounts, even if it was for the children’s schooling. Appellant stated he set up the
funds for the benefit of the children. As to funds taken out of Sydney’s account, appellant
and appellee had a conversation about the actual dollar amount that needed to be taken
out of the account to pay for school. He knew for Sydney’s first two years of college the
money had to be coming from the 529 plan. After that, he assumed appellee would pay
the college expenses from her own income, not the 529 fund, because appellant wanted
to save the 529 funds for medical school.
{¶11} Appellant testified the 529 funds were used legitimately since 2018 for
Sydney. However, he still considers this financial misconduct because appellee did not
obtain his permission to expend these funds to pay for Sydney’s school. As for Shelby
and Symone, appellant has no outside evidence to show or suggest they weren’t used
for anything other than school, but he does not know what the funds were used for. He
did not approve any of the transfers from Shelby or Symone’s 529 plans.
{¶12} Appellee testified that Sydney attended Vanderbilt University. Though
Sydney got a full tuition scholarship, appellant and appellee were responsible for paying
room and board, which was $8,900 per semester. Appellee used the 529 plan to pay this
room and board. Appellee testified appellant knew about the transactions for Sydney
because he had to complete the 1099’s to submit for their taxes. Appellee denied that
she and appellant ever discussed saving the 529 for medical school. Shelby went to
Columbus State, and appellee testified she used the money from Shelby’s 529 plan to
pay for Columbus State. Initially, appellant was not aware the funds were being used for
Delaware County, Case No. 23 CAF 10 0095 6
Columbus State. However, he never complained about the use of the funds from the 529
plan for Columbus State. In August of 2021, Shelby started at Kentucky State University,
and she is still going there. Appellee would like to use the 529 funds to help pay for the
tuition, which is $18,000 per year. Symone goes to a private high school, and appellee
used funds from the 529 plan to help pay for the tuition. Appellee testified to Exhibit P,
which is documentation of where the funds went from the 529 accounts to pay for each
school expense.
{¶13} Appellee testified she did not know she needed permission from appellant to
spend the 529 funds. Appellee stated appellant never complained about her using the
funds, and the statements came to the home via the mail each month for him to view. He
never told appellee he had any issues with the use of the funds contained in the
statements. Appellee stated it was appellant who told her she could use the 529 funds
to pay for books and other school-related expenses because she thought she could only
use it for tuition. Appellee testified she had always taken care of paying fees and all
school shopping for the children throughout their marriage, so she believed she was
permitted to use the 529 funds for their education expenses. Appellee stated she always
used the 529 funds for the benefit of her daughters, as the accounts were established for
their benefit.
{¶14} Appellee testified that appellant gave her the password for the 529 accounts.
Appellant admitted he gave appellee the password for the 529 accounts in 2008. He
stated she was only supposed to use the passwords in the event of his death, not to
change any of the information associated with the account.
Delaware County, Case No. 23 CAF 10 0095 7
{¶15} Appellant spent a lengthy amount of time detailing what he believes to be
financial misconduct that appellee committed for “excessive spending” from 2016 until the
date of separation. Initially in their marriage, from 1996 to 2015, appellant managed the
finances how he wanted to. The parties separated for a period of time in 2015 or 2016.
In order to provide appellee with some security she said she desired, appellant transferred
$44,000 from the TD Ameritrade account into appellee’s personal checking account.
Also, in 2016, when appellee returned to the home, appellant stated he let her be in
charge of the discretionary household spending; however, he set up a separate account
that appellee did not have access to in order to pay household bills. Appellant let appellee
make payments for items such as food, vacations, phone, internet, cable, eating out,
social events, and “lifestyle items.” Appellant testified he got bonuses of over $100,000
each year. He did not include any of his bonus money in the amount he gave appellee
for discretionary spending; rather, he kept the funds for himself.
{¶16} Appellee disputed appellant’s testimony that she was in charge of all of the
discretionary spending. She agreed that he gave her a certain amount of money and she
had to pay for food, vacations, home repairs, household expenses, and expenses for the
children (cheer squad, gymnastics, Girl Scouts, soccer); however, she stated he kept a
large amount of money for himself to do with what he wanted. She never knew who he
was loaning money to or what he was investing in. If appellee questioned him, appellant
would tell her it was his money and his house. Further, appellee stated appellant would
continually add items to what she needed to pay (i.e., life insurance premiums) and did
not increase the amount he gave her. Appellant agreed he spent his funds on items for
his family, such as paying for his brother to take college classes, purchasing plane tickets
Delaware County, Case No. 23 CAF 10 0095 8
for his family, remodeling his mother’s home for $12,000, paying $5,000 for his aunt’s
home, and purchasing two cars for his mother. In 2017, he paid $25,000 to create an
endowment at Ohio State University. He did not tell appellee about this because they
were not “discussing financial matters during the last five years of [their] marriage.”
{¶17} Appellant presented the court with Exhibit 9, which contained his opinion as
to what amount would be reasonable to spend for each discretionary category. He
testified that from January 1, 2017 to the end of May 2021, he deposited over $494,497.23
into appellee’s “discretionary” account. Appellant went through each charge appellee
made, and detailed how he believed each of these charges was excessive. Appellant
believes $214,035 was a normal and responsible budget for that period of time, so he
believes appellee excessively spent $233,559.19. Appellant also expected that, during
that period, appellee would have been saving and investing at least some money in the
529 plans and the TD Ameritrade account.
{¶18} Appellee testified the charges she made during this time were not excessive,
and the amounts appellant felt were “reasonable” for each discretionary category were
not reasonable. Appellee stated appellant would consider it extravagant if she spent $10
more on something than she should have. Appellee testified everything she was buying
was for the children and the marital home and included items such as: pots, pans,
decorations, furniture, towels, comforters, book fairs, school supplies, lessons, uniforms,
vacations, restaurants, entertainment, and home repairs.
{¶19} Appellee testified she established a “Greenlight Account” with Huntington
Bank. The account has appellee’s name on it, along with her daughters’ Sydney and
Shelby’s names on it. Appellee stated that, during the marriage from 2016 to 2021, she
Delaware County, Case No. 23 CAF 10 0095 9
used the funds in this account to provide funds to the kids for an allowance, concerts,
food, eating out, and activities. Sydney and Shelby each worked during this time at Giant
Eagle and Cane’s, and those funds went into the Huntington account with all three names
on it (“Greenlight Account”). Sydney now has a full-time teaching job. She still puts her
paycheck into the Greenlight Account. Appellee keeps notes of how much each child
deposits into the account each month. On cross-examination, appellant agreed appellee
funded the Greenlight Account for the children. He agrees the money was all sent to the
girls; however, he believes it is financial misconduct because he did not approve the use
of the funds.
{¶20} The magistrate issued a detailed magistrate’s decision on August 29, 2023.
The magistrate found the duration of the marriage to be from October 5, 1996 to February
13, 2023. The magistrate utilized the required factors to determine an appropriate
property division that is fair and equitable. In part, the magistrate found as follows: it is
fair and equitable for the value of the lot appellant purchased in August of 2022 to be
utilized in the property division analysis and for the value of the lot to be retained by
appellant; appellant should be responsible for the loan he took out of his 401(K) to
purchase the lot; it is fair and equitable for the full value of Chase bank accounts to be
utilized, and for the value of the accounts to be retained by appellant and assigned to him
as an asset; the $67,000 withdrawn from the Chase Brokerage account to purchase the
lot is present in the equity value of the lot; and appellant’s retirements plans should be
divided as of February 13, 2023. The magistrate divided all of the accounts and assets,
and completed the Court’s Exhibit 1, which is entitled “Property Division Spreadsheet.”
After going through the factors and detailing each marital and separate asset for each
Delaware County, Case No. 23 CAF 10 0095 10
spouse, the magistrate ordered appellant to pay a one-time property equalization
payment of $29,343.65.
{¶21} The magistrate found appellant committed financial misconduct when he
utilized $50,000 from joint assets to pay for the lot because the 401(K) he borrowed the
money from was clearly intended to be a retirement asset of the parties. Further, that
appellant personally gained and profited from the financial activities utilizing the 401(K)
loan, and appellee’s interest was, in part, defeated as the balance remaining to be divided
was reduced by the loan.
{¶22} The magistrate determined appellant did not include his bonus income in his
budget or identify where the funds were deposited or what remains of them. Further, that
appellant used these funds for his personal discretionary spending as he saw fit, and he
retained $186,662.94 in bonus income during the proceedings. However, the magistrate
found no financial misconduct as to the bonuses.
{¶23} As to the 529 accounts, the magistrate noted appellant testified the 529 for
Sydney was used for legitimate educational expenses. Further, both parties testified the
intent of establishing the 529 accounts was to provide for the children’s educational
expenses. Neither party testified that they ever believed the 529 accounts were
investments for the parties benefit or later withdrawal. The magistrate concluded
appellant failed to establish appellee engaged in financial misconduct as it relates to 529
savings because: neither party believed those assets to be their individual entitlements
or investments; the testimony was clear that both parties intended for the 529 plans to be
for the benefit of the children and specifically for the payment of education related
expenses for the children; and there was no profit to appellee or defeat of appellant’s
Delaware County, Case No. 23 CAF 10 0095 11
marital interest because both parties testified the accounts were for the children’s
educations which both parties acknowledge are ongoing. The magistrate designated
appellee as the custodian of the 529 accounts and ordered they be maintained and
utilized only for the benefit of the children. The magistrate concluded it was not fair and
equitable to include the 529 plans as marital assets because the accounts are being held
and maintained for the benefit of the children and their education expenses.
{¶24} With regards to appellant’s request to find appellee committed financial
misconduct for spending $44,000 from a TD Ameritrade account he gave her in 2016, the
magistrate noted appellee’s testimony that she spent the money on a water heater for the
marital home, repairs to the marital home, swimming lessons for appellant’s mother, the
family pet, cabin trips, and expenses for the family. The magistrate found no financial
misconduct because the transfer occurred years before the parties’ separation and
because, by appellant’s own admission, there were “no strings attached” to this money
he gave her. The magistrate stated she “will not second guess joint marital decisions that
occurred 5 years prior to their separation.”
{¶25} The magistrate next addressed appellant’s request for a finding of financial
misconduct against appellee for allegedly excessive spending from 2016 through 2020.
The magistrate made the following findings: appellant was never denied access to the
parties’ accounts; appellant never requested information about the parties’ accounts;
appellant believed when appellee took over the discretionary spending she had an
understanding of his expectations with regard to investing; appellant was uninvolved with
discretionary spending after 2016; appellant made no effort to inform himself of the state
of the parties’ financial affairs; appellee testified appellant kept a tight hold of the finances
Delaware County, Case No. 23 CAF 10 0095 12
of the parties; when appellant’s budgeted amount was not sufficient to meet expenses,
appellee had no choice but to rely on credit cards to pay for things above and beyond the
budgeted amounts; appellee did not believe she was in charge of all of the discretionary
spending after 2016 because appellant gave himself a certain amount each month; while
appellee had a limited amount of income to pay for family expenses, appellant was paying
for other family member’s vehicles; appellee never knew how appellant was spending his
money; appellee testified that with the Greenlight Account she essentially provided the
kids with the ability to purchase food and pay for things they needed that appellee funded
with a Huntington checking account; appellant believes this is misconduct because he
never gave his children an allowance; appellant agreed it appeared the amounts were
largely used for the children; and appellant put appellee in charge of the finances and
chose to be hands-off despite her history of running up credit card balances.
{¶26} The magistrate stated, “hours of testimony were spent pouring over financial
analyses conducted by John detailing what he believed to be the financial misconduct of
Tracey.” Further, that the parties, throughout their marriage, disagreed on how they
would handle financial affairs. The magistrate concluded that disagreeing on how to
handle financial affairs is insufficient to meet the burden for financial misconduct.
{¶27} Appellant filed objections to the magistrate’s decision on September 13,
2023. He also requested a thirty-day extension to file the transcript and supplement his
objections. Appellee filed cross-objections to the magistrate’s decision, and a motion to
dismiss appellant’s objections as being untimely.
{¶28} The trial court issued a judgment entry on September 29, 2023. The court
found appellant’s objections untimely, and also found appellee’s cross-objections
Delaware County, Case No. 23 CAF 10 0095 13
untimely. Further, the court adopted the magistrate’s order, and incorporated by
reference the findings of fact and conclusions of law contained in the magistrate’s
decision.
{¶29} Appellant appeals the September 29, 2023 judgment entry of the Delaware
County Court of Common Pleas, Domestic Relations Division, and assigns the following
as error:
{¶30} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
FAILING TO CONSIDER APPELLANT’S OBJECTIONS TO THE MAGISTRATE’S
DECISION THAT WERE FILED ONE DAY LATE.
{¶31} “ II. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
ADHERE TO THE PARTIES’ STIPULATIONS REGARDING THE DATE AND VALUE OF
THE MARITAL ASSETS.
{¶32} “III. THE TRIAL COURT COMMITTED PLAIN ERROR BY UTILIZING
MULTIPLE VALUATION DATES WHEN DETERMINING THE DIVISION OF ASSETS
AND THE PROPERTY DIVISION EQUALIZATION PAYMENT
{¶33} “IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOCATING
TO APPELLANT THE VALUE OF ACCOUNTS USED TO PURCHASE A LOT AND
THEN ALSO ALLOCATING THE LOT TO APPELLANT RESULTING IN DOUBLE
COUNTING OF THE SAME ASSETS.
{¶34} “V. THE TRIAL COURT COMMITTED PLAIN ERROR BY (A) FAILING TO
CHARACTERIZE THE 529 COLLEGE SAVINGS ACCOUNTS AS MARITAL ASSETS
AND (B) FAILING TO INCORPORATE THEM INTO THE CALCULATION OF THE
PROPERTY DIVISION EQUALIZATION PAYMENT.
Delaware County, Case No. 23 CAF 10 0095 14
{¶35} “VI. THE TRIAL COURT COMMITTED PLAIN ERROR BY
CHARACTERIZING A 401K LOAN OBTAINED BY APPELLANT AS A “SEPARATE
LIABILITY” BECAUSE (A) SUCH LOAN WAS USED TO FUND THE ACQUISITION OF
THE LOT AND (B) THE LOT HAS BEEN TREATED AS A MARITAL ASSET.
{¶36} “VII. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONCLUDE THAT APPELLEE ENGAGED IN FINANCIAL MISCONDUCT WHEN SHE
UNILATERALLY WITHDREW $113,087.75 FROM THE 529 COLLEGE SAVINGS
ACCOUNTS WITHOUT APPELLANT’S KNOWLEDGE OR CONSENT.
{¶37} “VIII. THE TRIAL COURT COMMITTED PLAIN ERROR BY AWARDING
THE ENTIRE HEALTH SAVINGS ACCOUNT TO APPELLANT AND FAILING TO
RESTRAIN APPELLEE FROM UTILIZING SUCH ACCOUNT TO PAY HEALTH-
RELATED EXPENSES AFTER JULY 18, 2022.
{¶38} “IX. THE TRIAL COURT COMMITTED PLAIN ERROR BY CONCLUDING
THAT APPELLEE DID NOT ENGAGE IN FINANCIAL MISCONDUCT FOR EITHER (A)
FAILURE TO DISCLOSE $44,000 PREVIOUSLY DISTRIBUTED TO APPELLEE FROM
THE PARTIES’ JOINT TD AMERITRADE INVESTMENT ACCOUNT OR (B) SPENDING
THE ENTIRE $44,000 DURING A 60-DAY PERIOD IN 2016 WITHOUT APPELLANT’S
KNOWLEDGE.
{¶39} “X. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONCLUDE THAT APPELLEE’S TRANSFER OF $35,300 FROM RESTRICTED
SAVINGS ACCOUNT TO CHECKING ACCOUNTS (AND ULTIMATELY SPENDING OF
IT) IN VIOLATION OF THE MUTUAL RESTRAINING ORDER CONSTITUTED
FINANCIAL MISCONDUCT.
Delaware County, Case No. 23 CAF 10 0095 15
{¶40} “XI. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO
CONCLUDE THAT APPELLEE’S EXCESSIVE AND SECRETIVE SPENDING OF
$233,559.19 IN 4 ½ YEARS CONSTITUTED FINANCIAL MISCONDUCT.
I.
{¶41} In his first assignment of error, appellant argues the trial court abused its
discretion by failing to consider appellant’s objections to the magistrate’s decision that
were filed one day late. Appellant concedes his objections were filed one day late, but
contends the trial court “could have used its discretion” and considered the objections.
{¶42} Civil Rule 53(D)(3)(b)(i) provides that “a party may file written objections to
a magistrate’s decision within fourteen days of the filing of the decision, whether or not
the court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).”
{¶43} In this case, the magistrate’s decision contains a time-stamp of August 29,
2023. Appellant did not file his objections until September 13, 2023, which is one day
past the fourteen-day deadline contained in Civil Rule 53(D)(3)(b)(i). Appellant did not
file a motion for extension pursuant to Civil Rule 53(D)(3)(b)(5), and made no attempt to
demonstrate “good cause” as to why the objections were filed late. We find no abuse of
discretion in the trial court’s failing to consider appellant’s objections as they were not in
compliance with Civil Rule 53(D)(3). Village of Lakemore v. Schell, 2019-Ohio-5097 (9th
Dist) (no abuse of discretion for trial court not to consider objections that were filed one
day late); Lineback v. Lineback,
2017-Ohio-5673 (12th Dist.) (objections filed one day late
are out of compliance with the rule); Hull v. Hull,
2012-Ohio-970 (5th Dist.) (written
Delaware County, Case No. 23 CAF 10 0095 16
objections are necessary to preserve issues for appeal). Appellant’s first assignment of
error is overruled.
Plain Error Review
{¶44} Because we overruled appellant’s first assignment of error, we review the
remainder of his assignments of error pursuant to the plain error doctrine. “Plain error” is
often construed to encompass errors of law or other defects evident on the face of the
magistrate’s decision which prohibit the adoption of a magistrate’s decision even in the
absence of objections. A.A. v. F.A., 2019-Ohio-1706 (5th Dist.).
{¶45} The plain error doctrine is not favored and may be applied only in the
extremely rare case involving exceptional circumstances where the error seriously affects
the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself. Kell v. Russo, 2012-
Ohio-1286 (5th Dist.), citing Goldfuss v. Davidson, 79 Ohio St.3d 116,
679 N.E.2d 1099
(1997). Even if we were to discover plain error, we have “discretion to disregard the error
and should correct it only to prevent a manifest miscarriage of justice.”
Id.
II. & III.
{¶46} In his second assignment of error, appellant contends the trial court
committed error in ignoring the stipulations the parties made as to the division of the
retirement accounts. In his third assignment of error, appellant argues the trial court
committed plain error by utilizing multiple valuation dates when determining the division
of assets and the property equalization payment.
{¶47} At issue in these assignments of error are appellant’s retirement accounts
from Nationwide and Merrill Lynch (collectively, “Appellant’s Retirement Accounts”).
Delaware County, Case No. 23 CAF 10 0095 17
Specifically, these accounts are as follows: Nationwide 401(K), Nationwide Pension,
Nationwide Deferred Compensation, Nationwide Supplemental Defined Contribution
Plan, and appellant’s Merrill Lynch IRA. Appellant contends the trial court committed
plain error in (1) failing to recognize stipulations as to these accounts and (2) in utilizing
multiple valuation dates for these accounts and other financial accounts.
{¶48} It is clear from the record that appellee did stipulate to the values of
Appellant’s Retirement Accounts, as follows: $790,630 for the Nationwide 401(K),
$325,000 for the Nationwide Pension, $12,260 for the Nationwide Supplemental Defined
Contribution Plan, $56,180 for the Nationwide Deferred Compensation, and $145,230 for
the Merrill Lynch IRA.
{¶49} The magistrate and trial court utilized the stipulated values in the property
division worksheet (Court’s Exhibit 1), and calculated the property division equalization
payment owed by appellant to appellee based upon the stipulated values. However, in
the magistrate’s decision that was adopted by the trial court, the magistrate incorrectly
found the parties did not stipulate to these values. The entry states the following: “the
parties did not stipulate to the value of the (Nationwide) pension,” “the parties did not
stipulate to the value of either the Nationwide Deferred Compensation Plan or the
Nationwide Supplemental Defined Contribution Plan,” and “the parties did not stipulate to
the value of John’s Merrill Lynch IRA.” Additionally, the trial court utilized a June 30, 2022
date to divide all of appellee’s retirement accounts while utilizing the February 13, 2023
date to divide Appellant’s Retirement Accounts.
{¶50} Appellee argues the parties never stipulated to one specific valuation date
and did not stipulate or agree to the duration of the marriage. We agree with appellee
Delaware County, Case No. 23 CAF 10 0095 18
that the parties never stipulated to a specific valuation date and clearly did not stipulate
to or agree to the duration of the marriage. Accordingly, we find no error in the magistrate
and trial court’s determination of the duration of the marriage pursuant to R.C.
3105.171(A)(2). However, the magistrate’s judgment entry, which was adopted by the
trial court, incorrectly states that the values of appellant’s retirement accounts were not
stipulated to. Further, the trial court’s Exhibit 1 (property division worksheet) conflicts with
the judgment entry, as they each provide a different date for the valuation of Appellant’s
Retirement Accounts.
{¶51} Appellee also contends the trial court is permitted to utilize multiple valuation
dates as long the trial court sufficiently explains its reasoning. A trial court has the
discretion to determine the date of valuation in its discretion, and this date may vary from
asset to asset. Batten v. Batten, 2010-Ohio-1912 (5th Dist.) (trial court clearly set forth
explanation for utilizing different valuations dates, so no abuse of discretion); Karabogias
v. Zoltanski,
2023-Ohio-227 (8th Dist.); Bobie v. Bobie,
2023-Ohio-3293 (12th Dist.) (it is
within the court’s discretion to use different valuation dates where valuation or account
balances at a certain date were the only evidence before the court). However, the trial
court must adequately explain its reasons for choosing different valuation dates for certain
assets.
Id. The record reflects that the magistrate and trial court adequately and
specifically explained its reasons for utilizing the differing valuation dates for the accounts
other than Appellant’s Retirement Accounts to achieve equity. The trial court valued
these accounts based upon the only valuation or account balances presented to the court.
{¶52} While the judgment entry issued by the magistrate and adopted by the trial
court clearly explains why it utilized the sometimes-varying valuation dates for the
Delaware County, Case No. 23 CAF 10 0095 19
accounts other than Appellant’s Retirement Accounts, neither the magistrate nor the trial
court explained why the values stipulated to by the parties was utilized on Exhibit 1, but
was not included in the judgment entry. These errors or defects are evident from the face
of the magistrate’s decision subsequently adopted by the trial court.
{¶53} Appellant’s second and third assignments of error are overruled in part and
affirmed in part. Upon remand, the trial court shall only address the narrow issues of (1)
determining whether the fact that the parties stipulated to the value of Appellant’s
Retirement Accounts impacts the division of Appellant’s Retirement Accounts
(Nationwide 401(K), Nationwide Pension, Nationwide Deferred Compensation,
Nationwide Supplemental Defined Contribution Plan, Appellant’s Merrill Lynch IRA) and
(2) if necessary, after determining whether the stipulations impact the division date of
Appellant’s Retirements Accounts, to provide clarification as to why the date of division
of the retirement accounts differs in Exhibit 1 and the judgment entry.
IV.
{¶54} In his fourth assignment of error, appellant argues the trial court committed
plain error in “double counting” two Chase checking accounts in the amounts of
$61,597.72 and $11,104.34 because these accounts were depleted to purchase the lot
in Pataskala and thus the trial court could not allocate these two checking accounts to
appellant on the balance sheet because the lot was listed on the balance sheet.
{¶55} The trial court must equitably divide marital property between spouses in
accordance with R.C. 3105.171. The trial court has broad discretion to determine an
equitable and fair division of the marital assets. Hull v. Hull, 2012-Ohio-970 (5th Dist.).
Delaware County, Case No. 23 CAF 10 0095 20
Thus, the valuation of marital assets is typically a factual issue that is left to the discretion
of the trial court. Tincher v. Tincher,
2020-Ohio-3352 (5th Dist.).
{¶56} At trial, appellant testified he utilized the following to pay for the lot: (1)
$50,000 loan from his 401(K), (2) $67,000 from a Chase brokerage/investment account,
and (3) $33,000 from a Chase checking account that he liquidated upon purchase of the
lot. The Chase brokerage/investment account had a balance of $1,000, and this $1,000
was allocated to appellant on the balance sheet, not the entire $68,000. The magistrate
specifically found that, even though appellant provided no statements for this account,
the $67,000 withdrawn is “present in the equity of the Pataskala, Ohio lot.” Accordingly,
there was no double-counting of the investment account.
{¶57} It is unclear where appellant is claiming the $33,000 came from, either the
$11,104.34 checking account, the checking $61,597.72 account, or both. Anything over
the $33,000 would not be double-counting because appellant’s testimony is that only
$33,000 came from a Chase checking account. In her findings of fact, the magistrate
found appellant completely liquidated the $33,000 Chase checking account to buy the lot.
This was in accordance with appellant’s testimony that he liquidated the account to
purchase the lot. Thus, no $33,000 checking account was included on the court’s balance
sheet (Exhibit 1). In the “financial accounts” section of her decision, the magistrate
allocated two checking accounts in appellant’s name to him, utilizing the amounts
contained in appellant’s Exhibit 25 ($61,597.72 and $11,104.34), and found it fair and
equitable to assign these to appellant.
{¶58} The magistrate did not assign or “double count” the $33,000 because she
found it was depleted to purchase the lot and did not list it on the balance sheet. However,
Delaware County, Case No. 23 CAF 10 0095 21
the magistrate did separately assign to appellant two checking accounts with balances
contained in appellant’s Exhibit 25. Reading these two provisions of the magistrate’s order
together, the magistrate found the checking accounts listed on Exhibit 25 were separate
from the account used to fund the lot. As to the determination of the funding source for
the $33,000, the determination of whether a witness or evidence is credible rests solely
with the finder of fact, and we may not substitute our judgment. Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77,
461 N.E.2d 1273. If there are inconsistencies in the
testimony or evidence offered at trial, the trier of fact is free to believe or disbelieve any
or all of the evidence presented. Bevard v. Bevard,
2010-Ohio-4210 (5th Dist.).
{¶59} Appellant also appears to be arguing the trial court’s determination as to
these checking accounts was against the manifest weight of the evidence. However, this
Court cannot conduct a manifest-weight-of-the-evidence review because appellant failed
to file timely objections to the magistrate’s decision. Additionally, the magistrate and trial
court based its determination on the testimony and evidence presented by the parties. “A
domestic relations court is in the best position to resolve disputes of fact, and assess the
credibility of the witnesses and the weight to be given to their testimony.” Bates v. Bates,
2005-Ohio-3374 (10th Dist.).
{¶60} The magistrate additionally found appellant committed financial misconduct
with the purchase of the lot in violation of the temporary restraining order. R.C.
3105.171(E)(4) provides that “the court may compensate the offended spouse with a
distributive award or with a greater award of marital property.” Accordingly, to the extent
the magistrate and trial court compensated appellee with these funds, we cannot
conclude the magistrate’s decision, or the trial court’s adoption thereof, amounted to plain
Delaware County, Case No. 23 CAF 10 0095 22
error that seriously affected the basic fairness, integrity, or public reputation of the judicial
process.
{¶61} Appellant’s fourth assignment of error is overruled.
V.
{¶62} In his fifth assignment of error, appellant argues the trial court committed
plain error by failing to characterize the 529 college savings accounts as marital assets
and by failing to incorporate them into the property division equalization payment.
{¶63} In the judgment entry by the magistrate later adopted and approved by the
trial court, the magistrate found the 529 college fund was not a marital asset for purposes
of determining the property division because the testimony demonstrated the accounts
are being held and maintained for the benefit of the children and payment of their
education-related expenses. The magistrate detailed the testimony of the parties in this
regard, specifically the testimony that both parties agreed the accounts were established
for their children’s education, neither party believed these assets to be their individual
assets, and both parties’ clear testimony that they intended the 529 plans to be for the
benefit of their children.
{¶64} Appellant asserts that since 529 college savings plans do not fall within the
definition of “separate property” under R.C. 3105.171, they legally are martial property,
and can never be found to be separate property. However, there is no clear-cut rule that
529 plans must always be classified as marital assets. Ramsey v. Ramsey, 2014-Ohio-
1921 (10th Dist.) (529 plans was not part of the property division because the parties
specifically contemplated the funds for education expenses for the children rather than a
personal financial account for either spouse); Ramsey v. Ramsey, 2012-Ohio-1715 (9th
Delaware County, Case No. 23 CAF 10 0095 23
Dist.) (529 plan was the property of the children, and not marital property, where the
parties agreed to utilize the funds for the children’s education, thus suggesting that the
parties were not free to do with the funds as they liked); Roush v. Roush,
2017-Ohio-840
(10th Dist.) (no error in finding savings accounts were not marital, but were assets of the
parties’ children, trial court’s determination supported by competent and credible
evidence). That determination is based upon the testimony and evidence presented in
each case, and an appellate court reviews the decision as to whether a 529 plan or other
account for the benefit of the child is marital to determine whether it is against the manifest
weight of the evidence. Roush v. Roush,
2017-Ohio-840 (10th Dist.).
{¶65} Of particular relevance, this Court has found that a trial court’s finding was
not in error when it determined certain funds belonged to the parties’ teenage children
when the parties intended to use the funds to pay for education. Kinney v. Kinney, 2005-
Ohio-5712 (5th Dist.).
{¶66} This Court cannot conduct a manifest-weight-of-the-evidence review
because appellant failed to file timely objections to the magistrate’s decision. Additionally,
the magistrate and trial court based their determination on the testimony and evidence
presented by the parties. “A domestic relations court is in the best position to resolve
disputes of fact, and assess the credibility of the witnesses and the weight to be given to
their testimony.” Bates v. Bates, 2005-Ohio-3374 (10th Dist.).
{¶67} We find the magistrate and trial court’s treatment of the 529 plans does not
contain any error that would seriously affect the basic fairness, integrity, or public
reputation of the judicial process, or challenge the legitimacy of the underlying judicial
process itself. Appellant’s fifth assignment of error is overruled.
Delaware County, Case No. 23 CAF 10 0095 24
VI.
{¶68} In his sixth assignment of error, appellant contends the trial court committed
plain error by characterizing the $50,000 401(K) loan obtain by appellant to fund his
purchase of the Pataskala lot to be his separate liability because the lot is treated as a
marital asset. Appellant contends since the lot is marital property, the loan used to obtain
the lot should also be martial property.
{¶69} Characterization of property as marital or separate debt must be supported
by competent and credible evidence. Tincher v. Tincher, 2020-Ohio-3352 (5th Dist.).
Trial courts have broad discretion in determining what is separate property and what is
marital property.
Id.
{¶70} The magistrate and trial court found the $50,000 401(K) loan that appellant
obtained in August of 2022 was separate debt. This finding was consistent with
appellant’s testimony. Appellant testified he believed he should be responsible for the
indebtedness. This finding is also consistent with appellant’s proposed findings of fact in
which he states, “plaintiff requests the Court to declare each party to be solely responsible
for the indebtedness that they incurred in their individual name, and, as a result, award
the $50,000 401(K) loan to Plaintiff.” Likewise, appellant did not include the $50,000 loan
on his proposed balance sheet as marital property. Accordingly, we find no plain error in
the treatment of the loan as appellant’s separate debt.
{¶71} Appellant asserts in his appellate brief that “the trial court failed to find that
the 401(K) loan to purchase the lot constitue[d] financial misconduct,” and thus it is
improper for the loan to be characterized as separate property. Appellant also asserts it
was error to classify the loan as separate property because appellee did not suffer any
Delaware County, Case No. 23 CAF 10 0095 25
financial harm from his actions. However, the magistrate, and the trial court by adopting
the magistrate’s decision, clearly found appellant engaged in financial misconduct by
obtaining the loan in August of 2022 in violation of the temporary restraining order.
{¶72} The magistrate specifically found as follows: the funds in the 401(K) were
intended to be retirement assets of the parties; appellant personally gained and profited
from his financial activities utilizing the 401(K) loan; appellee’s interest was, in part,
defeated; and marital funds were dissipated to the advantage of appellant and the
disadvantage of appellee.
{¶73} A determination on financial misconduct rests on the fact and circumstances
of each case. Tincher v. Tincher, 2020-Ohio-3352 (5th Dist.). As such, the trier of fact is
given the duty to determine the credibility of each party’s assertions in determining
financial misconduct.
Id. The trial court is provided discretion in determining whether a
spouse committed financial conduct pursuant to R.C. 3105.171(E)(3), generally subject
to whether the determination is against the manifest weight of the evidence.
Id. Financial
misconduct implies some type of wrongdoing such as interference with the other spouses’
property rights. Typically, the offending spouse … either profits from the misconduct or
intentionally defeats the other spouses’ distribution of marital assets.” Kilpatrick v.
Kilpatrick,
2011-Ohio-443 (5th Dist.). To determine financial misconduct, a court must
look to the reasons behind the questioned activity or the results of that activity and
determine whether the wrongdoer profited from the activity or intentionally dissipated,
destroyed, concealed, or fraudulently disposed of the other spouse’s assets. Tincher v.
Tincher.,
2020-Ohio-3352 (5th Dist.).
Delaware County, Case No. 23 CAF 10 0095 26
{¶74} Appellant contends the magistrate and trial court committed error in their
determination that he personally gained and profited and that appellee’s interest was, in
part, defeated, by the purchase of the lot in August of 2022 without appellee’s knowledge.
While the general standard of review is whether the trial court’s finding of financial
misconduct is against the manifest weight of the evidence, that standard is not applicable
in this case because appellant did not timely filed objections to the magistrate’s decision.
Essentially, appellant is asking this Court to conduct a manifest weight of the evidence
review to determine whether the decision of the magistrate and trial court was
unsupported due to the testimony and evidence he presented at trial. We cannot conduct
a manifest-weight-of-the-evidence review since no timely objections were filed to the
magistrate’s decision.
{¶75} We cannot conclude that the magistrate's decision, or the trial court's
adoption thereof, amounted to plain error that “seriously affect[ed] the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy of
the underlying judicial process itself.” Brandon, 2009–Ohio–3818, at ¶ 37, quoting
Davidson, 79 Ohio St.3d 116, syllabus. Appellant’s sixth assignment of error is overruled.
VII.
{¶76} In his seventh assignment of error, appellant contends the trial court
committed plain error by failing to conclude appellee engaged in financial misconduct
when she unilaterally withdrew $113,087.75 from the 529 college savings accounts
without appellant’s knowledge or consent.
{¶77} The magistrate issued the following findings of fact: appellee testified she
changed the e-mail on the account because she initiated the transfers to the schools;
Delaware County, Case No. 23 CAF 10 0095 27
appellee testified she never changed the password on the account and appellant always
had access to the account; appellant testified he believed the 529 funds for Sydney were
used for legitimate educational expenses, although he could not remember if he made
any of those transactions; appellant testified he and appellee had a discussion about
needing to send money to the school, but he does not remember what happened after
that; appellant testified he did not look at the accounts because he did not need to;
appellant believes after appellee started working full-time, appellee should have used her
income to pay the tuition, room, and board for their children; appellant changed the
password to the 529 fund for Symone during the divorce so appellee could not access
the funds; appellant testified he was not making a statement one way or the other as to
whether the 529 funds were used for legitimate purposes; appellant believes it is financial
misconduct because he did not approve the transfers; appellee testified appellant never
questioned her on the 529 expenses and it was appellant who informed appellee she
could use the 529 accounts to purchase books; and appellee testified she utilized funds
from the 529 accounts to pay for legitimate educational expenses. The magistrate
concluded: it was clear both parties intended for the 529 plans to be for the benefit of the
children; and appellee did not defeat appellant’s marital interest in the accounts because
both parties testified the accounts were for the children’s education needs that are
ongoing and appellee used the funds for educational expenses.
{¶78} While appellant argues appellee committed “electronic forgery” by utilizing
the password for the 529 account in order to change the e-mail on the account, appellee’s
undisputed testimony is that appellant gave her the password to the account in 2016.
Delaware County, Case No. 23 CAF 10 0095 28
Accordingly, we find no plain error in the trial court’s determination that this did not
constitute financial misconduct.
{¶79} Appellant cites this Court’s decision in Musleve v. Musleve for the
proposition that a spouse automatically commits financial misconduct by withdrawing
funds from a 529 plan without the knowledge or consent of the other spouse, and that
oral testimony by the spouse withdrawing the funds is never sufficient to trace the funds.
Musleve v. Musleve, 2008-Ohio-3961 (5th Dist.).
{¶80} We disagree with appellant’s characterization of the Musleve case. In
Musleve, we found the trial court’s determination that one spouse had not sufficiently
traced 529 funds from the college savings account to expenditures made on behalf of the
child’s college education was not against the manifest weight of the evidence and a
finding of financial misconduct by the trial court was not an abuse of discretion. Id. We
specifically noted in Musleve the broad discretion the trial court has in a finding of financial
misconduct.
Id. Additionally, we did not issue a bright-line rule that a spouse
automatically commits financial misconduct by withdrawing funds from a 529 plan without
the consent of the other spouse, or that the oral testimony by the spouse withdrawing the
funds is never sufficient to trace the funds. Rather, we re-iterated that “it was within the
trial court’s province” to find the appellant had not sufficiently traced the funds.
Id. In
this case, it was similarly within the trial court’s province to determine, based upon the
testimony and evidence offered by appellee, that appellee sufficiently traced the funds.
We find no plain error in the trial court’s determination.
{¶81} Appellant essentially requests this Court conduct a manifest-weight-of-the-
evidence review of the trial court’s determination as to the sufficiency of appellee’s
Delaware County, Case No. 23 CAF 10 0095 29
evidence tracing the funds. We decline to do so since appellant did not file timely
objections to the magistrate’s decision. We cannot conclude the magistrate's decision,
or the trial court's adoption thereof, in this regard amounted to plain error that “seriously
affect[ed] the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” Brandon, 2009–Ohio–
3818, at ¶ 37, quoting Davidson, 79 Ohio St.3d 116, syllabus. Appellant’s seventh
assignment of error is overruled.
VIII.
{¶82} In his eighth assignment of error, appellant contends the trial court
committed plain error when it awarded the entire health savings account to appellant and
failed to restrain appellee from using funds in this account after July 18, 2022.
{¶83} Appellant’s argument is essentially that the trial court should have valued
the account as of September 30, 2023, instead of July 18, 2022. Appellant attaches to
his appellate brief Exhibit D, which is purportedly a print-out of the account balance as of
September 30, 2023, and with a “statement print date” of January 31, 2024. This exhibit
contains information from dates subsequent to the trial, subsequent to the magistrate’s
decision, and subsequent to the trial court’s judgment entry; further, it was “printed out”
after this appeal was already filed. Appellant’s reliance on a new exhibit attached to his
appellate brief in support of his appeal is misplaced. “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.” State ex rel. Montgomery Cty. Pub.
Defender v. Siroki, 2006-Ohio-662; State ex rel. Harris v. Turner,
2020-Ohio-2901. This
Delaware County, Case No. 23 CAF 10 0095 30
is particularly true in this case because appellant failed to timely object to the magistrate’s
decision, and we review the trial court’s decision for plain error.
{¶84} The magistrate specifically stated why she utilized the July 18, 2022 date to
value the Health Savings Account, i.e., because appellant testified the HSA had a value
of $7,546.78 and that was the only value presented at trial by either of the parties. We
find no plain error in the magistrate’s determination.
{¶85} As to appellant’s argument regarding a restraining order, appellant did not
request such an order be issued, or ask that the trial court wait to value the HSA until
some later date. A litigant who has the opportunity to raise an issue in the trial court, but
declines to do so, waives the right to raise that issue on appeal. Fields v. Zanesville
Police Depart., 2021-Ohio-3896 (5th Dist.).
{¶86} Appellant’s eighth assignment of error is overruled.
IX.
{¶87} In his ninth assignment of error, appellant argues the trial court committed
plain error in concluding that appellee did not engage in financial misconduct for either
(1) the failure to disclose the $44,000 previously distributed to appellee from the parties’
joint TD Ameritrade Investment Account or (2) spending the entire $44,000 during a 60-
day period in 2016 without appellant’s knowledge.
{¶88} Both parties testified appellant divided the TD Ameritrade account between
themselves in 2016, with appellant receiving $49,000 and appellee receiving $44,000.
The magistrate found the transfer of the $44,000 occurred years prior to the parties’
separation and, by appellant’s own testimony, there were no strings attached to this
transfer. The magistrate stated she would “not engage in revisionist history with regard
Delaware County, Case No. 23 CAF 10 0095 31
to this account transfer, nor will the magistrate second guess the joint marital decisions
of the parties with respect to an account transfer that occurred … years prior to the
parties’ separation.”
{¶89} The magistrate clearly found appellee’s testimony that she spent the
$44,000 on a new water heater for the marital home, repairs to the marital home, the
purchase of a new family pet, swimming lessons for appellant’s mother, cabin trips, and
expenses for the family and the children, to be credible. Accordingly, we find no plain
error in the determination that appellee did not commit financial misconduct for the failure
to disclose the $44,000 because the funds did not exist as of the date of the divorce filing.
It is appellant’s position that this testimony is not credible, and appellee’s explanation is
not plausible. However, the trier of fact is given the duty to determine the credibility of
each party’s assertions in determining financial misconduct. Tincher v. Tincher, 2020-
Ohio-3352 (5th Dist.). The determination of whether a witness or evidence is credible
rests solely with the finder of fact, and we may not substitute or judgment. Seasons Coal
v. Cleveland, 10 Ohio St.3d 77,
461 N.E.2d 1273 (1984). If there are inconsistencies in
the testimony or evidence offered at trial, the trier of fact is free to believe or disbelieve
any or all of the evidence presented. Bevard v. Bevard,
2010-Ohio-4210 (5th Dist.).
{¶90} Similarly, the magistrate and trial court found no financial misconduct for
appellee’s alleged “excessive spending” of the $44,000 due to the parties’ testimony that
there were no “restrictions” or “strings” attached to these funds being distributed among
the spouses. We find no plain error in this determination. This determination is based
upon the testimony of the parties. We may not substitute our judgment for the trier of
fact’s determination of credibility. Appellant’s ninth assignment of error is overruled.
Delaware County, Case No. 23 CAF 10 0095 32
X.
{¶91} In his tenth assignment of error, appellant contends the trial court committed
plain error by failing to conclude that appellee’s transfer of $35,300 from restricted savings
accounts to checking accounts (and ultimate spending of it) in violation of the mutual
restraining order constituted financial misconduct.
{¶92} We first note that it is unclear as to whether appellant asked the magistrate
to find financial misconduct for appellee’s alleged transfer from $35,300 from restricted
savings accounts to checking accounts in violation of the restraining order. This is
evidenced by appellant’s closing argument, in which “Exhibit A,” appellant’s proposed
awards for financial misconduct, includes three lines for requested financial misconduct
findings: “#1 – TD Ameritrade ($44,000), #2 – 529 Plans ($213,895), #3 – Excessive
Spending ($233,560).” However, counsel for appellant did cross-examine appellee on
these transfers.
{¶93} We find no plain error in the magistrate and trial court finding no financial
misconduct on the part of appellee. We again find this is a situation in which the trier of
fact found appellee’s testimony credible, as is the trial court’s province. Appellee testified
she transferred funds from her savings to her checking and from her checking to her
savings because her daughters would deposit their paychecks into the Huntington
account (joint account between appellee and her daughters), and request appellee pay
various bills for them. Thus, she was continually moving money at various times;
however, these were not marital funds, but were separate funds of her children. Appellant
asserts this testimony is not credible. However, the determination of whether a witness
Delaware County, Case No. 23 CAF 10 0095 33
or evidence is credible rests solely with the finder of fact, and we may not substitute or
judgment. Seasons Coal v. Cleveland, 10 Ohio St.3d 77,
461 N.E.2d 1273 (1984).
{¶94} While appellant asks this Court to conduct a manifest-weight-of-the-
evidence review of the trial court’s determination, we cannot do so because appellant did
not timely file objections to the magistrate’s decision. We cannot conclude that the
magistrate's decision, or the trial court's adoption thereof, in this regard amounted to plain
error that “seriously affect[ed] the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.” Brandon, 2009–Ohio–3818, at ¶ 37, quoting Davidson, 79 Ohio St.3d 116,
syllabus. Appellant’s tenth assignment of error is overruled.
XI.
{¶95} In his final assignment of error, appellant contends the trial court committed
plain error in failing to conclude that appellee’s allegedly excessive spending of
$233,559.19 in 4.5 years constituted financial misconduct. He argues that since he
managed the money with no issues from 2000-2016 and appellee spent the money in a
“non-customary” manner when she took over discretionary spending in 2016, appellee’s
actions amount to financial misconduct.
{¶96} Appellant testified to numerous bank deposits, transfers, and Greenlight
transfers which he believes proves his allegations of “excessive spending” by appellee
from 2016 through the date when appellee moved out of the marital home in 2021.
{¶97} The magistrate found the parties disagreed throughout their marriage how
to spend money; however, this constant disagreement was insufficient to meet the burden
of financial misconduct. We find no plain error in this determination. Appellant believed
Delaware County, Case No. 23 CAF 10 0095 34
appellee should have been investing and covering their discretionary spending from the
funds he gave her. He admits that though this was his expectation, he chose not to check
account balances he had access to, but felt since appellee did not ask “permission” or
invest it as he thought she should, it was financial misconduct. Appellee testified that
while appellant kept certain funds for himself and spent money on his family, the budgeted
amount he provided her was not sufficient to meet expenses, and that the bulk of the
funds at issue were used for the parties’ three children and items around the home.
{¶98} The magistrate made the determination that the spending by appellee was
not excessive and no financial misconduct occurred based upon the conflicting testimony
of the parties. A determination on financial misconduct rests on the facts and
circumstances of each case. Tincher v. Tincher, 2020-Ohio-3352 (5th Dist.). As such,
the trier of fact is given the duty to determine the credibility of each party’s assertions in
determining financial misconduct.
Id. The determination of whether a witness or
evidence is credible rests solely with the finder of fact, and we may not substitute our
judgment. Seasons Coal Co. v. Cleveland,
10 Ohio St.3d 77,
461 N.E.2d 1273 (1984).
If there are inconsistencies in the testimony or evidence offered at trial, the trier of fact is
free to believe or disbelieve any or all of the evidence presented. Bevard v. Bevard, 2010-
Ohio-4210 (5th Dist.).
{¶99} We find the cases cited by appellant not to be analogous to the instant case.
First, none of the cases involve the use of the plain error doctrine; rather, they involved
an abuse of discretion review. Further, they involved different factual scenarios than what
was presented in this case. Longo v. Longo, 2005-Ohio-2069 (11th Dist.) (spending was
post-separation; withdrew funds from a home equity line of credit while temporary
Delaware County, Case No. 23 CAF 10 0095 35
restraining order was in place; appellant admitted she was angry and overspent); O’Neal
v. O’Neal,
2022-Ohio-372 (8th Dist.) (during the marriage, husband withdrew and spent
all of his retirement without wife’s knowledge); Carpenter v. Carpenter,
2007-Ohio-1238
(7th Dist.) (wife took the money she was supposed to use the pay the bills and she did
not, causing the home to go into foreclosure and the utilities to be shut off).
{¶100} Appellant essentially requests this Court conduct a manifest-weight-of-the-
evidence review of the trial court’s determination. We decline to do so since appellant
did not file timely objections to the magistrate’s decision. We cannot conclude that the
magistrate's decision, or the trial court's adoption thereof, in this regard amounted to plain
error that “seriously affect[ed] the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process
itself.” Brandon, 2009–Ohio–3818, at ¶ 37, quoting Davidson, 79 Ohio St.3d 116,
syllabus. Appellant’s eleventh assignment of error is overruled.
{¶101} Based on the foregoing, appellant’s first, fourth, fifth, sixth, seventh, eighth,
ninth, tenth, and eleventh assignments of error are overruled. Appellant’s second and
third assignments of error are overruled in part and sustained in part.
{¶102} Accordingly, the September 29, 2023 judgment entry of the Delaware Court
of Common Pleas, Domestic Relations Division is affirmed in part, and reversed and
remanded in part. Upon remand, the trial court shall only address the narrow issues of
(1) determining whether the fact that the parties stipulated to the value of Appellant’s
Retirement Accounts impacts the division date of Appellant’s Retirement Accounts
(Nationwide 401(K), Nationwide Pension, Nationwide Deferred Compensation,
Nationwide Supplemental Defined Contribution Plan, Appellant’s Merrill Lynch IRA) and
Delaware County, Case No. 23 CAF 10 0095 36
(2) if necessary, after determining whether the stipulations impact the division date of
Appellant’s Retirements Accounts, to provide clarification as to why the date of division
of the retirement accounts differs in Exhibit 1 and the judgment entry.
By Gwin, P.J.,
Wise, J., and
King, J., concur
