[Cite as Devito v. Devito,
2024-Ohio-2234.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ELIZABETH A. CROSS DEVITO, : APPEAL NO. C-230539
TRIAL NO. DR1901095
Plaintiff-Appellee, :
vs. : O P I N I O N.
RICHARD DEVITO, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 12, 2024
Ferris & Manter and Aaron J. Manter, for Plaintiff-Appellee,
Strauss Troy Co., L.P.A., and Carrie R. Waide, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Richard Devito (“Husband”) appeals the
decision of the Hamilton County Court of Common Pleas, Domestic Relations
Division, that awarded his separate property to plaintiff-appellee Elizabeth A. Cross
Devito (“Wife”) as a distributive award. We find no merit in his two assignments of
error, and we affirm the trial court’s judgment.
Factual Background
{¶2} Husband and Wife were married in 2014, and had one child. The
record shows that in 2016, Husband was arrested and jailed for producing child
pornography. Two years later, he pleaded guilty to one count of that offense and was
sentenced to 360 months (30 years) in a federal prison.
{¶3} Subsequently, Wife filed for divorce. In 2021, a magistrate conducted
a hearing to determine the property division and parental rights. In her decision,
the magistrate stated that the division of property was not equal, although it was
equitable, because due to Husband’s imprisonment, he would not be “in a position
to maintain employment, earn income or help support” the parties’ child. The
magistrate also found that Wife was entitled to a distributive award due to
Husband’s criminal actions that resulted in him being imprisoned for 30 years.
Though not specifically stated, the language of the magistrate’s decision implied that
the distributive award was justified to compensate Wife for Husband’s financial
misconduct. See Devito v. Devito, 1st Dist. Hamilton No. C-210523, 2022-Ohio-
2563, ¶ 29.
{¶4} While the magistrate found that Husband had insufficient income to
support their child, he had other assets, including his retirement accounts. The
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OHIO FIRST DISTRICT COURT OF APPEALS
magistrate determined that Husband had two retirement accounts and awarded
Wife “the entirety of the retirement plans and investment accounts, including any
separate property portion, free and clear of any claim of [Husband].”
{¶5} Both parties objected to the magistrate’s decision. As to the property
division, the trial court overruled Husband’s objections. Wife objected on the basis
that the magistrate had failed to dispose of a 401(K) plan in Husband’s name. The
court sustained Wife’s objection and awarded her “the entirety of the retirement plan
free and clear of any claim of [Husband].” The trial court adopted the magistrate’s
decision as modified, which was incorporated into the divorce decree.
The Prior Appeal
{¶6} Husband appealed from the decree to this court. In one of his
assignments of error, he contended that the trial court abused its discretion in
awarding his separate property to Wife as a distributive award. In Devito, 1st Dist.
Hamilton No. C-210523, 2022-Ohio-2563, we reversed the trial court’s decision as
to the property division and the distributive award.
{¶7} First, we noted that the decree did not include Husband’s money from
an inheritance in the decree. We determined that it was Husband’s separate
property. Id. at ¶ 25. Then, we determined that, because the trial court’s finding
under R.C. 3105.171(E)(4) was improper and the trial court did not make any other
findings to support the distributive award, the distributive award to Wife did not
comport with the statutory requirements set forth in R.C. 3105.171. Id. at ¶ 36. We
stated that “a distributive award may be justified under R.C. 3105.171. But as
currently written, the decision does not comport with the statutory requirements.”
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OHIO FIRST DISTRICT COURT OF APPEALS
Id. We remanded the cause to the trial court “to reconsider the division of assets and
properly determine whether a distributive award is appropriate.” Id. at ¶ 37.
The Remand
{¶8} On remand, the trial court held a hearing where counsel presented
additional oral arguments. Wife argued that Husband’s criminal activity “is the
wrongdoing that resulted in a sentence of 360 months of incarceration.” She added,
[Husband’s] wrongdoing caused his incarceration which, in turn,
interferes with his spouse’s property rights because [Wife] is now
required to use 100% of her property rights, without ongoing financial
assistance from [Husband], to incur all of the expenses associated with
raising their child which is a loss to [Wife] caused by the offending
spouse’s misconduct. Meanwhile [Husband] profits from his
wrongdoing because he is not required to pay child support for their
child due to his incarceration.
The magistrate found Wife’s argument to be persuasive. She stated that “[W]ife has
satisfied the elements for demonstrating financial misconduct,” and that financial
misconduct justified a distributive award of Husband’s separate property to Wife.
{¶9} Both parties filed objections to the magistrate’s decision. The trial
court sustained one of Wife’s objections relating to the value of Husband’s separate
property and overruled her other two objections. Husband’s objection stated that
the magistrate erred “in making a distributive award of [Husband’s] separate
property, and failed to allocate the marital property equitably.” The trial court
overruled his objection and adopted the magistrate’s decision. It added that “the
Court finds that the Magistrate did equitably divide the marital property under R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
3105.171(F) as she thoroughly considered all of the required factors when issuing her
decision.”
{¶10} The trial court’s decision was incorporated in an amended divorce
decree, journalized on September 15, 2023. Husband now appeals from that final
order. He presents two assignments of error for review.
The Current Appeal
{¶11} In his first assignment of error, Husband contends that the trial court
erred in finding that Husband had engaged in financial misconduct and in awarding
Husband’s separate property to Wife as a distributive award. In his second
assignment of error, Husband contends that the trial court failed to allocate the
parties’ marital property equitably. He argues that the court failed to equitably
divide one of his retirement accounts because only a percentage of the funds in the
account were marital, and the rest was his separate property. The court awarded all
of the proceeds from that account to Wife as part of the distributive award. These
assignments of error are not well taken.
{¶12} We review a domestic relations court’s property division in a divorce
proceeding for an abuse of discretion. Dunn v. Dunn, 1st Dist. Hamilton Nos. C-
010282 and C-010292, 2002-Ohio-6247, ¶ 12, citing Cherry v. Cherry,
66 Ohio
St.2d 348,
421 N.E.2d 1293 (1981). R.C. 3105.171 governs the division of property in
a divorce, and a distributive award made “without following all of R.C. 3105.171’s
requirements” is an abuse of discretion. Devito, 1st Dist. Hamilton No. C-210523,
2022-Ohio-2563, at ¶ 21, quoting Akins v. Akins, 7th Dist. Carroll No. 12 CA 882,
2014-Ohio-4432, ¶ 57.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} After the trial court determines whether property is marital or
separate, the court “shall divide the marital and separate property equitably between
the spouses.” R.C. 3105.171(B). The statute requires an equal distribution of marital
property unless an equal division would be inequitable. R.C. 3105.171(C)(1). To
determine what is equitable, the court must consider the factors listed in R.C.
3105.171(F). Devito at ¶ 26, citing Neville v. Neville,
99 Ohio St.3d 275, 2003-Ohio-
3624,
791 N.E.2d 434, ¶ 5.
{¶14} In addition to an equitable division of marital property, the court may
make a distributive award. A distributive award is “any payment or payments, in
real or personal property, that are payable in a lump sum or over time, in fixed
amounts, that are made from separate property or income, and that are not made
from marital property and do not constitute payments of spousal support ….” R.C.
3105.171(A)(1). R.C. 3105.171(E) sets forth the reasons for which the trial court may
order a distributive award. Devito at ¶ 28.
{¶15} The trial court relied on R.C. 3105.171(E)(4), which permits a
distributive award if “a spouse has engaged in financial misconduct including, but
not limited to, the dissipation, destruction, concealment, nondisclosure, or
fraudulent disposition of assets ….” The trial court’s reliance on this section and
its determination that Husband had engaged in financial misconduct is contrary to
our previous decision See Devito, 1st Dist. Hamilton No. C-210523, 2022-Ohio-
2563, at ¶ 20-36.
{¶16} Nevertheless, R.C. 3105.171(E)(1) provides that “[t]he court may make
a distributive award to facilitate, effectuate, or supplement a division of marital
property.” As to this section, the magistrate stated that she had made the distributive
award “to facilitate, effectuate and supplement an equitable division of the parties’
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OHIO FIRST DISTRICT COURT OF APPEALS
marital property due to the fact that [Husband] committed financial misconduct and
is serving a 360-month sentence on child pornography related charges which
prevents him from exercising his financial obligations to their child, which in turn
interferes with [Wife’s] property rights.”
{¶17} We note that in our previous decision, we stated that there “was no
finding that a distributive share was made to facilitate, effectuate, or supplement the
division of marital property” under R.C. 3105.171(E)(1). Devito, 1st Dist. Hamilton
No. C-210523, 2022-Ohio-2563, at ¶ 34. But we remanded the cause to the domestic
relations court to reconsider the division of assets and properly determine whether
a distributive award was appropriate. Id. at ¶ 37. On remand, the trial court
provided more detailed findings and specifically made the finding that a distributive
award was proper under R.C. 3105.171(E)(1).
{¶18} Further, the court’s consideration of equity is not limited to R.C.
3105.171(E). As a general rule, R.C. 3105.111 states that domestic-relations courts
have “full equitable powers and jurisdiction appropriate to the determination of all
domestic relations matters.” Lenore v. Breidenbach, 1st Dist. Hamilton No. C-
140310, 2015-Ohio-2929, ¶ 18.
{¶19} Additionally, R.C. 3105.171(B) requires the court in divorce
proceedings to “divide the marital and separate property equitably between the
spouses ….” R.C. 3105.171(F) lists ten factors the court should consider when
making a division of marital property and in determining whether to make and the
amount of any distributive award. Under R.C. 3107.171(F)(10), the court can
consider “any other factor that the court expressly finds to be relevant and
equitable.”
{¶20} Under section (F)(10), the magistrate found,
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OHIO FIRST DISTRICT COURT OF APPEALS
[Husband] dishonestly committed a wrongdoing, a criminal act when
he manipulated young children for his personal benefit and received a
sentence of incarceration for 360 months. Because of this behavior
[Husband] committed financial misconduct when his dishonest
wrongdoing interfered with [Wife’s] property rights requiring her to use
100% of her property rights to endure the expenses of raising their child.
This allows [Husband] to profit from his own wrongdoing by no longer
contributing to the expenses associated with raising their child. Courts
can no longer impute income to inmates to establish an order of child
support, (O.R.C. 3119.05(J)). [Husband] should not profit from his
wrong-doing by essentially diverting his separate and marital assets
from his financial responsibilities for their child, to himself. If so, this
would require [Wife] to shoulder the entire responsibility associated
with raising their child and interfere with her property rights. Thus, an
equitable division of marital property is warranted and addressed in the
Magistrate’s Decision ….
{¶21} This finding, together with the magistrate’s finding under section
(E)(1), shows that the magistrate concluded that the circumstances warranted a
distributive award to Wife to facilitate an equitable division of property since Wife’s
award of the marital assets inevitably would be diminished by having to be the sole
provider for their child.
{¶22} This case is similar to Albers v. Albers, 2d Dist. Greene No. 2012 CA
41, 2013-Ohio-2352. In that case, wife filed for divorce after accusations surfaced
that husband had sexually abused one of the parties’ children. He was subsequently
convicted of sexual battery and one count of gross sexual imposition, and sentenced
to an aggregate prison term of two years. Also, he was a doctor and lost his license
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OHIO FIRST DISTRICT COURT OF APPEALS
to practice medicine due to his convictions. The trial court ordered a distributive
award to wife.
{¶23} Initially, the appellate court agreed with husband’s assertion that
sexual battery and gross sexual imposition are not financial misconduct, “although
many of the financial consequences of one’s imprisonment for these offenses are
readily apparent.” Id. at ¶ 15. But it also stated that “the trial court’s characterization
of [husband’s] conduct as financial misconduct was not determinative.” Id.
{¶24} It observed that “[n]umerous courts have held that criminal conduct
by one of the parties to a divorce can be considered in making an equitable
distribution of marital assets, because of the financial ramifications that such
conduct frequently creates for that spouse.” Id. at ¶ 17. After discussing some of
those cases it stated,
All of these cases found that it was equitable, under the circumstances
presented, to award one spouse more than half of the marital assets,
because the other spouse’s criminal activity had eliminated or
specifically reduced his earnings and his ability to pay spousal support
and/or had necessitated the expenditure of significant marital assets on
criminal defense. None of those cases relied on a finding of ‘financial
misconduct’ as discussed in R.C. 3105.171(E)(4).
Id. at ¶ 19.
{¶25} The court then proceeded to analyze the case before it under general
principles of equity and affirmed the trial court’s judgment awarding wife more than
half of the martial assets. It stated that although the trial court had found that
husband’s voluntary criminal acts constituted financial misconduct, a review of its
decision and the divorce decree established that its conclusions were “based on the
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OHIO FIRST DISTRICT COURT OF APPEALS
effects of criminal conduct and general principles of equity.” Albers, 2d Dist. Greene
No. 2012 CA 41, 2013-Ohio-2352, at ¶ 20.
{¶26} Specifically, the trial court had said that the “only equitable solution”
was a distributive award to compensate wife for the family’s economic hardship. It
found that husband’s incarceration “is a result arising from his voluntary,
intentional, and criminal acts,” and that his conduct “created the adverse financial
consequences” that would continue to impact “this family, the children’s emotional
well being, their lifestyle, and their social standing within their community for years
to come.” Id. The trial court also concluded that wife needed an “additional award
of marital assets to compensate her for [husband’s] inability, due to his voluntary,
intentional, criminal acts, to pay periodic child support out of earned income for the
three minor children or to pay periodic spousal support out of earned income.”
Id.
{¶27} The appellate court noted that the trial court did not hold that all
criminal convictions, regardless of the nature of the offense, the length and type of
penalty involved, and their effect on the ability to earn income now or in the future,
constitute financial misconduct. It held that although the trial court and the parties
used the term “financial misconduct” too broadly, the trial court’s conclusions were
nonetheless valid. Therefore, the trial court did not abuse its discretion in
concluding that wife was entitled to a larger share of the marital assets for equitable
reasons. Id. at ¶ 21.
{¶28} We find this reasoning persuasive. While the trial court’s reliance on
the alleged “financial misconduct” was misplaced, it is also not determinative. The
trial court also found that the distributive award was equitable under R.C.
3105.17(E)(1) and (F)(10) and its general equitable powers. We cannot hold that the
trial court’s decision was so arbitrary, unreasonable or unconscionable as to connote
an abuse of discretion. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
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N.E.2d 1140 (1983); Federle v. Federle, 1st Dist. Hamilton No. C-180171, 2019-Ohio-
2565, ¶ 8. Consequently, we overrule Husband’s two assignments of error and affirm
the trial court’s judgment.
Judgment affirmed.
ZAYAS, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its own entry this date.
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