Collins v. Collins

[Cite as Collins v. Collins, 2011-Ohio-2339.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY

AMANDA M. COLLINS,

PLAINTIFF-APPELLANT/
CROSS-APPELLEE, CASE NO. 9-10-53

v.

DAVID W. COLLINS,
OPINION
DEFENDANT-APPELLEE/
CROSS-APPELLANT.

Appeal from Marion County Common Pleas Court
Domestic Relations Division
Trial Court No. 2009 DR 0329

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: May 16, 2011

APPEARANCES:

Keith A. Kochheiser for Appellant/Cross-Appellee

Kevin P. Collins for Appellee/Cross-Appellant
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SHAW, J.

{¶1} Plaintiff-appellant/Cross-Appellee, Amanda Collins (“Amanda”), and

Defendant-appellee/Cross-Appellant, David Collins (“David”), appeal the August

26, 2010 judgment of the Common Pleas Court, Family Division, of Marion

County, Ohio, granting the parties a divorce. On appeal, both parties contend that

the trial court made several errors in dividing marital property, separate property,

and debts, and in computing child support.

{¶2} The facts relevant to this appeal are as follows. Amanda and David

were married on August 17, 2002. Two children were born to the parties during

the marriage, one in 2006 and the other in 2008. On November 4, 2009, Amanda

filed a complaint for divorce. David filed an answer to that complaint and also

filed a counterclaim for divorce. The parties participated in mediation as to issues

regarding the children and were able to agree on a shared parenting plan.

{¶3} The final divorce hearing in this matter was held on April 26 and June

30, 2010. During this hearing, the parties informed the trial court that they agreed

on a shared parenting plan and they agreed that their household goods and various

items of personal property had been equally distributed between them. Largely at

issue in the hearing were Amanda’s and David’s debts, consisting mostly of

student loan debt, their earnings, and their retirement funds. Both Amanda and

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David testified at the hearing and presented a number of exhibits for the trial court

to consider in dividing their marital and separate property.

{¶4} On August 26, 2010, the trial court filed its judgment entry in this

matter. The court ordered that the parties equally divide their retirement funds

(Amanda had one and David had two), which had all been accumulated during the

marriage, by QDRO and to equally share any costs incurred to complete this

division. The trial court awarded the marital home to David and ordered that he be

responsible for the mortgage debt thereon. The trial court further awarded both of

the parties the vehicles each had in their respective possession, including any debt

on the vehicle in his or her possession. The court ordered David to continue to

provide health insurance coverage for the children and ordered the parties to

equally divide any uncovered medical expenses. Amanda was ordered to pay 60%

of the daycare expenses of the children, and David was to pay the remaining 40%.

Amanda was also ordered to pay child support of $123.73 per month. The trial

court also attached to its entry a copy of the child support guidelines worksheet it

completed to determine the amount of child support.

{¶5} As to their student loan debt, the trial court ordered that Amanda

would be responsible for paying $15,600.00 and David would be responsible for

paying $23,400.00 of their consolidated loan. Amanda was also ordered to pay

$14,700.00 on the Great Lakes student loan, and David was ordered to pay

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$8,000.00 on the CitiBank student loan and $5,000.00 on a different Great Lakes

student loan. Lastly, Amanda was ordered to pay the Bank of America debt of

$3,000.00, and David was ordered to pay the Capital One credit card debt of

$1,000.00.

{¶6} Amanda now appeals, asserting three assignments of error, and David

now appeals, asserting six assignments of error.

AMANDA’S FIRST ASSIGNMENT OF ERROR

WHEN REQUESTED BY APPEALANT [sic] IN HER
PLEADINGS TO BE RESTORED TO HER MAIDEN NAME,
IT IS ERROR FOR THE COURT NOT TO DO SO IN
ACCORDANCE WITH REVISED CODE 3105.16.

AMANDA’S SECOND ASSIGNMENT OF ERROR

THE COURT ERRED IN ITS COMPUTATION OF CHILD
SUPPORT PURSUANT TO REVISED CODE 3119.01(B)(7)(d),
BY FAILING TO USE THE MANDATORY DEDUCTION
FROM WAGES, I.E. UNION DUES, FOR APPEALANT [sic]
AND USING THEM IN ITS WORKSHEET, LINE 12,
PURSUANT TO REVISED CODE 3119.022.

AMANDA’S THIRD ASSIGNMENT OF ERROR

THE COURT, IN DIVIDING THE DEBTS, FAILED TO
FOLLOW REVISED CODE 3105.171(B) AND (D) BY
MAKING EACH SPOUSE RESPONSIBLE FOR A
SEPARATE DEBT OF THE OTHER SPOUSE AND FAILING
TO GIVE AN EXPLANATION AS TO WHY, THUS
RESULTING IN DIVORCED SPOUSES INSTEAD OF BEING
SEPARATE ENTITIES KEPT THEM OBLIGATED TO THE
OTHER AFTER DIVORCE.

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DAVID’S FIRST ASSIGNMENT OF ERROR

THE FAMILY COURT ERRED TO THE PREJUDICE OF
DAVID BY DESIGNATING AMANDA RESIDENTIAL
PARENT FOR SCHOOL PLACEMENT PURPOSES.

DAVID’S SECOND ASSIGNMENT OF ERROR

THE FAMILY COURT ERRED TO THE PREJUDICE OF
DAVID BY DETERMINING AMANDA’S CHILD SUPPORT
OBLIGATION TO BE $123.73 PER MONTH.

DAVID’S THIRD ASSIGNMENT OF ERROR

THE FAMILY COURT ERRED TO THE PREJUDICE OF
DAVID BY ORDERING EACH OF THE PARTIES’ THREE
RETIREMENT ACCOUNTS BE DIVIDED EQUALLY BY
DIVISION OF PROPERTY ORDERS.

DAVID’S FOURTH ASSIGNMENT OF ERROR

THE FAMILY COURT ERRED TO DAVID’S PREJUDICE
AND ABUSED ITS DISCRETION BY VALUING AMANDA’S
STRS AS OF JUNE 30, 2009.

DAVID’S FIFTH ASSIGNMENT OF ERROR

THE FAMILY COURT ERRED TO DAVID’S PREJUDICE
AND ABUSED ITS DISCRETION BY DETERMINING THE
VALUE OF THE 2000 FORD EXPLORER TO BE $3,850.

DAVID’S SIXTH ASSIGNMENT OF ERROR

THE FAMILY COURT ERRED TO THE PREJUDICE OF
DAVID BY DIVIDING THE MARITAL ESTATE
INEQUITABLY AND UNEQUALLY.

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{¶7} For ease of discussion, we elect to address some of the assignments of

error out of the order in which they appear and to address some of the assignments

of error, which are interrelated, together.

Amanda’s First Assignment of Error

{¶8} In her first assignment of error, Amanda asserts that the trial court

erred in failing to restore her to her former name of Amanda Wood. The Revised

Code provides that “[w]hen a divorce is granted the court of common pleas shall,

if the person so desires, restore any name that the person had before the marriage.”

R.C. 3105.16 (emphasis added.) Amanda’s prayer for relief in her complaint for

divorce requests that she be restored to her maiden name of Amanda Wood. Thus,

the trial court was required to restore her to her former name. The trial court

failed to restore Amanda to her former name, and, as such, this assignment of error

is sustained.

David’s First Assignment of Error

{¶9} David contends in his first assignment of error that the trial court erred

by designating Amanda the residential parent for school purposes rather than him.

In support of this position, David maintains that the parties made the following

stipulation at the April 26, 2010 hearing:

Residential parent for school purposes. The language in the
proposed plan shall continue. If the children cannot be enrolled

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in River Valley School District, the Father shall be designated
residential parent for school purposes.1

David further maintains that the trial court was required to incorporate this

stipulation by the parties and abused its discretion in failing to do so.

{¶10} This Court has previously noted that

[c]ourts in Ohio have long held that formal stipulations of fact
submitted to the court are in the nature of a special verdict by a
jury, being the equivalent of proof being made by both parties.
Thus, a stipulation of fact is no different from a jury
determination of fact. The result is that once a trial court has
accepted a stipulation of fact, it must base its conclusions of law
upon those stipulations.

Snyder v. Snyder, 3rd Dist. No. 14-06-52, 2007-Ohio-2676, ¶ 13. Further, “a

stipulation, once entered into, filed and accepted by the court, is binding upon the

parties and is a fact deemed adjudicated for purposes of determining the remaining

issues in that case.” Horner v. Whitta (Mar. 16, 1994), 3rd Dist. No. 13-93-33,

unreported, 1994 WL 114881.

{¶11} While, generally, a trial court should adopt a factual stipulation of the

parties, the question of who is to be designated the residential parent is not a

factual question; it is a legal determination. See, generally, R.C. 3109.04(A),

1
David cites this Court to page 15 of the transcript of the April 26, 2010 hearing and to Amanda’s “Exhibit
C” for this language. However, Exhibit C, entitled “Mutually Agreed upon Alterations to the Shared
Parenting Plan,” contains information about what the parties will do in the event that the children are sick
and what the transfer time will be during the summer. It contains no information about where the children
will attend school and/or who is to be designated the residential parent for school purposes nor is there any
information in this regard on page 15 of the transcript or on the pages immediately preceding and following
page 15.

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(B)(1). Further, when deciding issues related to the allocation of parental rights

and responsibilities for the care of a child, the trial court is always required to

consider what is in the best interest of the child regardless of whether the parents

can agree. See R.C. 3109.04(A), (B)(1). Thus, the trial court was not required in

this case to designate David as the residential parent for school purposes simply

because the parties may have agreed on this issue, if it were to find that the

proposed shared parenting plan was not in the best interests of the children.

{¶12} However, even if the trial court was required to adopt this agreement,

a review of the record does not reveal that the trial court was made aware of any

such agreement. Rather, David’s “Exhibit 1,” the shared parenting plan to which

the parties agreed, contains the following language regarding the children’s

education:

The parties agree that their first choice for school attendance
would be River Valley Schools. If the parents cannot agree on
the school that the children attend, in the event that River Valley
Schools are not feasible for attendance, the parties agree to
return to mediation February before the school year when
Addison would be attending Kindergarten. Once a school
district is agreed upon, the children cannot be removed from
that school district unless both parents agree to do so.

(Div. Hrg. Tran., 4/26/10, p.15, Defendant’s Exh. 1.)

{¶13} Neither party testified that they agreed that David be designated the

residential parent for school purposes. In fact, David’s own testimony established

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that this was a point of contention between the parties. After Amanda testified at

the April 26, 2010 hearing, David testified. During his direct examination, David

was asked about the shared parenting plan and whether there were any exceptions,

modifications, or remaining issues in his opinion, and specifically in regards to

school placement. David responded:

The issue is the children were born – in my perspective, the
children were born in Marion, they’ve always been in Marion,
their family’s in Marion or very close to Marion. The Plaintiff
has now moved to Delaware County. I want something done as
far as school placements go. I think we both agree that the
children aren’t gonna go to Delaware County. However it
occurred to me – (inaudible) – you’re a resident now of
Delaware County [Amanda resided in Delaware County at the
time of the hearing], that puts the issue – (inaudible) – We
agreed that the children should go to River Valley if they can but
there’s no guarantee on that. * * * I feel that the Court needs to
name a residential parent for the – (inaudible) – I’m still in
Marion County, I can – just for school purposes I can –
(inaudible) – with the Plaintiff’s situation, residential situation,
she cannot open enroll the children in River Valley.

(Div. Hrg. Tran., 4/26/10, pp. 22-23.) David then testified that he wanted to be

designated the residential parent for school placement purposes, but he never

testified that this was an agreement between the parties. Given the state of the

record, we find that the trial court did not err by failing to adopt an agreement of

which it was not aware.

{¶14} Moreover, an appellate court reviews a trial court’s decisions on

child custody matters for an abuse of discretion. Miller v. Miller (1988), 37 Ohio

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St.3d 71, 523 N.E.2d 846; Erwin v. Erwin, 3rd Dist. No. 14-05-45, 2006-Ohio-

2661, ¶ 12. An abuse of discretion connotes more than an error of judgment;

rather, it implies that the court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140. When applying the abuse of discretion standard, a reviewing court

may not simply substitute its judgment for that of the trial court. Id.

{¶15} In its judgment entry, the trial court adopted the following portion of

the shared parenting plan:

The parties agree that their first choice for school attendance
would be River Valley Schools. The children cannot be removed
from the River Valley School District unless both parents agree
to do so.

The trial court also ordered that Amanda be designated residential parent for

school purposes. There is nothing in the record and David has not provided any

basis beyond what we have previously discussed to demonstrate that the trial court

acted unreasonably, arbitrarily, or unconscionably in designating Amanda the

residential parent. Therefore, we cannot find that the trial court abused its

discretion, and David’s first assignment of error is overruled.

{¶16} Nevertheless, upon reviewing the proposed shared parenting plan and

the trial court’s judgment entry, we find that the trial court adopted only a portion

of the section entitled “Allocation of Parental Rights and Responsibilities” of the

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shared parenting plan, which we quoted in the preceding paragraph, rather than

adopting the plan as proposed. However, the Revised Code states

(D)(1)(a) Upon the filing of a pleading or motion by either
parent or both parents, in accordance with division (G) of this
section, requesting shared parenting and the filing of a shared
parenting plan in accordance with that division, the court shall
comply with division (D)(1)(a)(i), (ii), or (iii) of this section,
whichever is applicable:

(i) If both parents jointly make the request in their pleadings
or jointly file the motion and also jointly file the plan, the court
shall review the parents’ plan to determine if it is in the best
interest of the children. If the court determines that the plan is
in the best interest of the children, the court shall approve it. If
the court determines that the plan or any part of the plan is not in
the best interest of the children, the court shall require the parents
to make appropriate changes to the plan to meet the court’s
objections to it. If changes to the plan are made to meet the
court’s objections, and if the new plan is in the best interest of
the children, the court shall approve the plan. If changes to the
plan are not made to meet the court’s objections, or if the
parents attempt to make changes to the plan to meet the court’s
objections, but the court determines that the new plan or any
part of the new plan still is not in the best interest of the
children, the court may reject the portion of the parents’
pleadings or deny their motion requesting shared parenting of
the children and proceed as if the request in the pleadings or the
motion had not been made. * * *

R.C. 3109.04(D)(1)(a)(i) (emphasis added). The trial court unilaterally changed

the submitted plan without determining that the changed portion was not in the

children’s best interest and without allowing the parties the opportunity to make

the appropriate change.

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{¶17} Thus, although we do not find that the trial court erred in failing to

name David the residential parent for school placement purposes because this was

not part of the agreement, we find that the trial court erred in unilaterally changing

a portion of the submitted plan. Accordingly, upon remand, the trial court should

also correct this error by following the requirements of R.C. 3109.04

Amanda’s and David’s Second Assignments of Error

{¶18} Both Amanda and David assert in their respective second

assignments of error that the trial court erred in ordering that Amanda pay child

support in the total amount of $123.73 per month. Amanda maintains that the trial

court erred in this regard because it failed to include the mandatory deduction of

her union dues in its computation of her support obligation. David contends that

the trial court erred by basing the child support obligation on incorrect incomes for

both parties, including not accounting for Amanda’s increase in pay for the

coming school year, and by failing to include the mandatory deduction of his

union dues. David also asserts that the trial court erred in ordering that he be

responsible for 50% of the children’s uninsured medical expenses because the trial

court should have ordered that they pay in proportion to their respective incomes.

{¶19} An appellate court reviews the trial court’s determination of the

amount of income to be imputed in a child support order under an abuse-of-

discretion standard. Rock v. Cabral (1993), 67 Ohio St.3d 108, syllabus, 616

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N.E.2d 218. The calculation of child support is governed by R.C. Chapter 3119.

Pursuant to R.C. 3119.02, a court or child-support-enforcement agency must

calculate the amount of a child support obligation according to the schedules and

worksheets provided in R.C. 3119.02 to 3119.24. The trial court may deviate from

the amount determined by using the appropriate worksheet only if after

considering the factors and criteria set forth in R.C. 3119.23, it finds that the

amount “would be unjust or inappropriate and would not be in the best interest of

the child.” R.C. 3119.22. The applicable worksheet for this case is found in R.C.

3119.022, entitled “Child Support Computation Worksheet for Sole Residential

Parent or Shared Parenting Order,” because the trial court ordered shared

parenting.

{¶20} The first section in this worksheet requires information regarding the

parties’ incomes. Here, the trial court entered $39,689.00 for Amanda’s annual

gross income and $27,248.00 for David’s annual gross income. “Gross income” is

defined as “the total of all earned and unearned income from all sources during a

calendar year, whether or not the income is taxable[.]” R.C. 3119.01(C)(7).

According to Amanda’s W-2 for 2009 (Plaintiff’s Exhibit D), she earned

$39,688.87. According to David’s W-2 for 2009 (Defendant’s Exhibit 2), he

earned $25,055.13. When rounding to the nearest dollar, the trial court correctly

listed Amanda’s gross income as $39,689.00 based upon her W-2 for 2009.

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However, there is nothing in the record to support the trial court’s determination as

to David’s income. Thus, the trial court erred in using the $27,248.00 figure for

David’s income.

{¶21} David also contends that the trial court erred in failing to account for

Amanda’s pay raise. At the hearing, Amanda testified that, according to her

contract, she was due to receive a pay increase sometime in August or September

of 2010, and that she believed the amount of the increase was 15%. Neither party

presented a copy of her contract or provided any calculation of what her income

would be after the pay increase. Without this evidence, the trial court would have

been engaging in speculation as to Amanda’s future earnings. It is incumbent

upon the parties to provide sufficient evidence of wages rather than relying upon

the trial court’s speculation. See Dindal v. Dindal, 3rd Dist. No. 5-09-06, 2009-

Ohio-3528, ¶¶ 9-13. Therefore, we find that the trial court did not err in relying

upon the evidence actually before it to determine Amanda’s gross income.

{¶22} As for the deduction of union dues, the Revised Code provides that

gross income does not include “[a]mounts paid for mandatory deductions from

wages such as union dues[.]” R.C. 3119.01(C)(7)(d). The R.C. 3119.022

worksheet also includes a line for work deductions, such as union dues. Thus, a

trial court should deduct those amounts paid for union dues. In this case, the trial

court did not.

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{¶23} However, upon reviewing the record, we find that the parties did not

present sufficient evidence to determine the amount of union dues paid by them.

For instance, although Amanda testified that she paid union dues, she failed to

testify as to how much she paid in union dues. Further, her pay stubs (Plaintiff’s

Exhibits A and E) do not contain any information regarding union dues. As for

David, he also did not testify as to any amount he paid for union dues. In

reviewing his pay stubs (Defendant’s Exhibit 21), some of them show the

following description: “Communic Workers – Card Carry” in the amount of

$29.48. Arguably, this could lead one to infer that this described his union dues.

However, there was no testimony that this language was describing deductions for

union dues or what his total payment of union dues was per year. Notably, neither

party provided this Court with an exact amount paid for union dues either. Thus,

any error in not including these deductions for either party was due to the lack of

evidence presented by the parties, not because of any failure on the part of the trial

court.2 See Dindal, supra.

{¶24} Turning to the issue of whether the trial court erred in ordering the

parties to each pay 50% of their children’s uninsured medical expenses, including

2
We also note that R.C. 3109.04(G) states: “A plan for shared parenting shall include provisions covering
all factors that are relevant to the care of the children, including, but not limited to, provisions covering
factors such as * * * child support obligations * * *.” Thus, while we have found no authority for the
proposition that a plan that fails to include a provision covering child support is a fatal defect to an adoption
of the plan by a trial court, the error made by the trial court as to David’s income and the issues raised
regarding Amanda’s income and both parties’ union dues possibly could have been avoided if the parties
would have included a provision in their plan for child support obligations.

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extraordinary medical expenses, we find that the trial court did not abuse its

discretion in this regard. The total amount paid by David to carry the children

under his insurance was taken into account in the child support worksheet, see

Worksheet Line 20a, as were the amounts expended by both parties for childcare

(60% for Amanda, 40% for David), see Worksheet Lines 19a-19b. The parties

have the children for equal amounts of time, each parent has been assigned one

child for tax purposes, and David only has to pay 40% of the cost of child care.

Further, there is not such a disparity in income levels that would demonstrate that

Amanda, who is also ordered to pay David child support, would be in a better

financial position to warrant paying more in uncovered expenses. Therefore, we

do not find that the trial court acted in an unreasonable, arbitrary, or

unconscionable manner in dividing these expenses equally.

{¶25} For all of these reasons, Amanda’s second assignment of error is

overruled. In addition, David’s second assignment of error is overruled in regards

to the union dues, Amanda’s current and future earnings, and the division of

uncovered medical expenses. However, David’s second assignment of error is

sustained as to the calculation of child support based upon the figure used by the

trial court for his gross income.

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David’s Third and Fourth Assignments of Error

{¶26} David’s third and fourth assignments of error raise issues regarding

the parties’ retirement accounts. In his third assignment of error, David asserts

that the trial court erred in ordering that each of the parties’ three retirement

accounts be divided equally with the parties equally sharing any costs incurred to

complete this division. In his fourth assignment of error, David asserts that the

trial court erred by valuing Amanda’s retirement account at $32,465.57, which

was its value as of June 30, 2009 – a year before the final hearing date, rather than

to value it as of the date of the final hearing.

{¶27} The Revised Code requires a trial court to “determine what

constitutes marital property and what constitutes separate property.” R.C.

3105.171(B). The court is then required to “divide the marital and separate

property equitably between the spouses[.]” Id. The Revised Code further requires

that a trial court divide the marital property equally unless an equal division would

be inequitable, in which case “the court shall not divide the marital property

equally but instead shall divide it between the spouses in the manner the court

determines equitable.” R.C. 3105.171(C)(1).

{¶28} Trial courts have “broad discretion to determine what property

division is equitable in a divorce proceeding.” Cherry v. Cherry (1981), 66 Ohio

St.2d 348, paragraph two of the syllabus, 421 N.E.2d 1293. A trial court’s

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decision allocating marital property and debt will not be reversed absent an abuse

of discretion. Jackson v. Jackson, 3rd Dist. No. 11-07-11, 2008-Ohio-1482, ¶ 15,

citing Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131, 541 N.E.2d 597. As

previously noted, an abuse of discretion is more than a mere error; it implies that

the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore, 5

Ohio St.3d at 219, 450 N.E.2d 1140.

{¶29} In this case, neither party disputed that their retirement accounts

consisted wholly of amounts acquired during the marriage. Amanda, who was a

teacher, presented a copy of her annual statement for her State Teacher’s

Retirement System account (“STRS”) as of June 30, 2009, which was valued at

$37,401.10 (Plaintiff’s Exhibit K). This exhibit also showed Amanda contributed

$3,740.10 in the 2008-2009 fiscal year. David, a former substitute teacher,

presented his annual statement for his STRS as of June 30, 2009, which was

valued at $2,126.75 (Defendant’s Exhibit 17). This statement showed no

contributions by David the preceding fiscal year. David, currently employed at

The Ohio State University, also presented a statement of his Ohio Public

Employees Retirement System account (“OPERS”) as of March 31, 2010, which

was valued at $9,100.54. This statement also showed contributions by David

between January 1, 2010, and March 31, 2010, of $756.20, an investment gain of

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$371.80 during this period, and a distribution/debit of $7.56, for a total change in

value of $1,120.44 during this period.

{¶30} The trial court ordered that these three accounts be equally divided

and that the parties were to equally share any costs incurred to complete this

division. The court further ordered that counsel for each party prepare the

necessary QDRO’s to effect the transfer of interest to the other party.

{¶31} David asserts that the trial court should have ordered the preparation

of only one QDRO because it was more expensive to prepare three QDRO’s rather

than one and that he would be the party to bear the extra expense of the

preparation of the additional two QDRO’s. David also contends that the trial court

should have accounted for the additional fiscal year between Amanda’s STRS

statement and the date of the final hearing, taken into consideration that she would

have contributed at least $3,740.10 during that fiscal year given her contribution

the previous fiscal year, and then valued her STRS at a minimum of $36,205.67

rather than $32,465.57. We disagree.

{¶32} The trial court divided these accounts, which were indisputably

marital property, between Amanda and David equally. As previously noted, this is

what R.C. 3105.171(C)(1) requires unless it would be inequitable to do so.

Further, the trial court ordered that any cost incurred to complete this division be

split equally, not that each pay for their respective QDRO’s which might have

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resulted in a greater cost to David than to Amanda. Thus, we do not find that the

trial court erred in ordering the equal division of these accounts and that counsel

for each party prepare the necessary QDRO’s to complete this division.

Accordingly, David’s third assignment of error is overruled.

{¶33} As for the valuation of Amanda’s STRS, the trial court’s judgment

entry does not include a finding of any specific amount as asserted by David.

Rather, the court ordered that her STRS be divided equally between the parties

without providing a specific amount. The trial court also did not place a value on

either of David’s accounts but simply ordered that they, too, be divided equally.

The Revised Code defines “marital property” to include all interest by either

spouse in any property that was acquired by either during the marriage. R.C.

3105.171(A)(3)(a)(ii). The term “during the marriage” is defined, except as

otherwise provided, as “the period of time from the date of the marriage through

the date of the final hearing in an action for divorce.” R.C. 3105.171(A)(2)(a).

Thus, the QDRO’s would simply need to reflect the day of the termination of the

marriage for the STRS administrator to determine the value of Amanda’s STRS on

that date without the trial court having to place a certain value on the account.

{¶34} The court determined that the parties were married on August 17,

2002, and noted that the final hearing occurred on April 26, 2010, and June 30,

2010. However, the trial court did not make a finding regarding the date of the

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marriage’s termination. The trial court has broad discretion in choosing the

appropriate marriage termination date for purposes of property valuation. Berish

v. Berish (1982), 69 Ohio St.2d 318, 319, 432 N.E.2d 183. We have found no case

law which defines “date of final hearing,” either expressly as the date on which the

hearing commences or the date on which the hearing is completed. Because the

statute expressly defines “during the marriage” as “the period * * * through the

date of the final hearing”, it appears that either day may be appropriate. See

Milano v. Milano, 5th Dist. No. 2004CA00390, 2005-Ohio-6302. Nevertheless, it

is the trial court that is in the best position to determine which day to utilize, not

this Court. Thus, while we conclude that the trial court did not err in failing to

provide a specific valuation for Amanda’s STRS, it did err when it also failed to

determine the date of the termination of the marriage. In this case, the trial court

should have placed a value on the STRS and/or determined the date of the

termination of the marriage in order to ensure the proper amount would be utilized

for the division of this asset, as well as David’s retirement accounts.

{¶35} For these reasons, David’s fourth assignment of error is overruled to

the extent that he challenges the trial court’s failure to properly value Amanda’s

STRS. However, we must sustain this assignment of error and remand this case to

the trial court to determine the date of termination of the marriage so that the

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QDRO may reflect this date in order to properly value the retirement accounts for

this division.

Amanda’s Third Assignment of Error and David’s
Fifth and Sixth Assignments of Error

{¶36} The remaining assignments of error assert that the trial court erred in

allocating and dividing the parties’ marital and separate property and their debts.

More specifically, Amanda asserts in her third assignment of error that the trial

court erred in ordering her to pay David’s credit card debt to Bank of America,

totaling $3,084.58, and ordering him to pay her credit card debt to Capital One,

totaling $1,000.00 because it leaves the parties in an economic entanglement due

to those debts being in the other party’s respective name. David asserts in his fifth

assignment of error that the trial court erred in determining the value of the 2000

Ford Explorer, which was awarded to Amanda, to be $3,850.00, rather than

$5,495.00. In his sixth assignment of error, David contends that the trial court’s

division of the marital property was neither equal nor equitable because it awarded

Amanda nearly $11,000.00 more than it awarded to David without any off-set or

distributive award and with no explanation as to why this division was equitable.

{¶37} As previously discussed, in a divorce proceeding, the trial court must

determine whether property is marital or separate. Gibson v. Gibson, 3rd Dist. No.

9-07-06, 2007-Ohio-6965, ¶ 29, citing R.C. 3105.171(B), (D). This Court reviews

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a trial court’s classification of property as marital or separate under a manifest

weight of the evidence standard. Gibson, 2007-Ohio-6965, at ¶ 26 (citations

omitted). Accordingly, we will not reverse the trial court’s judgment in this regard

if the decision is supported by some competent, credible evidence. DeWitt v.

DeWitt, 3rd Dist. No. 9-02-42, 2003-Ohio-851, ¶ 10.

{¶38} Once the trial court classifies the property, it must then “divide the

marital and separate property equitably between the spouses[.]” R.C.

3105.171(B). The Revised Code further requires that a trial court divide the

marital property equally unless an equal division would be inequitable, in which

case “the court shall not divide the marital property equally but instead shall

divide it between the spouses in the manner the court determines equitable.” R.C.

3105.171(C)(1). Trial courts have “broad discretion to determine what property

division is equitable in a divorce proceeding.” Cherry, supra. A trial court’s

decision allocating marital property and debt will not be reversed absent an abuse

of discretion. Jackson, 2008-Ohio-1482, at ¶ 15, citing Holcomb, 44 Ohio St.3d at

131, 541 N.E.2d 597.

{¶39} Marital property includes property that is currently owned by either

or both spouses and that was acquired by either or both of the spouses during the

marriage. See R.C. 3105.171(A)(3)(a). Property acquired during a marriage is

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presumed to be marital property unless it can be shown to be separate. Huelskamp

v. Huelskamp, 185 Ohio App.3d 611, 2009-Ohio-6864, 925 N.E.2d 167, ¶ 15.

{¶40} The statute further states that “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). Thus, traceability is the key to determining whether

separate property has lost its separate character after being commingled with

marital property. Ward v. Ward, 3rd Dist. No. 01-03-63, 2004-Ohio-1390, ¶ 4,

citing Peck v. Peck (1994), 96 Ohio App.3d 731, 734, 645 N.E.2d 1300.

{¶41} In this case, Amanda and David both testified about their respective

credit card debt and each agreed to assume the liability for the credit card debt in

his or her name: David assuming the debt of $3,084.58 for the Bank of America

credit card, and Amanda assuming the debt of $1,000.00 for the Capital One credit

card. However, without explanation, the trial court ordered exactly the opposite,

leaving the parties responsible for debt in the other party’s name, unable to access

information about the account in the future without the cooperation of the other,

and with the ability to damage the other’s credit by not paying, which could not be

rectified simply by a contempt citation.

{¶42} Further, Amanda testified that the 2000 Ford Explorer, which was

marital property that she wanted to retain in her possession, was valued in the

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$5,000.00 range. David testified that the Kelley Blue Book showed that the 2000

Explorer was valued at $5,495.00. He also submitted a print-out from Kelley’s

Blue Book’s website evidencing this amount (Defendant’s Exhibit 7), and

Amanda did not dispute this figure. Nevertheless, and once again, without

explanation, the trial court found that this vehicle was valued at $3,850.00, leaving

a $1,645.00 discrepancy in the division of assets and debts.

{¶43} Amanda and David also both testified that they received student

loans to finance their respective educations prior to the marriage. The evidence

revealed that as of June 28, 2010, Amanda owed $14,338.83 on her Great Lakes

student loan, which originated before the marriage. The evidence further revealed

that as of May of 2010, David owed $8,168.67 on his CitiBank student loan and as

of April 22, 2010, he owed $5,059.21 on his Great Lakes student loan, both of

which originated before the marriage. Although the trial court rounded these

figures and included them as part of what it determined was the equitable

distribution of the marital debt, it divided these loans according to which party

incurred them before the marriage, not as a marital debt to be evenly divided.

{¶44} In addition, the parties both testified that they had other student loans

that they individually received prior to the marriage but that they consolidated

these loans during the marriage. However, they did not agree and did not present

any documentary evidence as to the amount of each party’s respective loan

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amounts that were made a part of this consolidation.3 At the time of the hearing,

the remaining balance of this loan was $39,324.58 (Defendant’s Exhibit 11.)

According to David’s trial brief, he agreed to be responsible for 60% of this debt

(approximately $23,600.00) and Amanda would be responsible for 40% of this

debt (approximately $15,700.00). Presumably in accordance with David’s brief,

the trial court ordered David to pay $23,400.00 of this debt and Amanda to pay

$15,600.00 of this debt.4 However, in David’s proposed division of debts and

assets, he also requested that Amanda be ordered to pay him the difference

between them in order to reach an equal division, but the trial court did not make

any such order.

{¶45} The trial court also awarded the marital home, valued at $78,370.00,

to David, as requested by the parties, and ordered that he be responsible for the

mortgage debt on the home of approximately $83,000.00. After dividing the other

debts and assets, the trial court did not order any type of off-set or distributive

award to either party to effectuate an equal division and provided no explanation

3
Amanda testified that she consolidated only $6,000.00 of her student loans into this debt, and David
testified that she consolidated more than that but did not provide an exact amount. Neither party presented
any documentation of the amounts originally consolidated or how much each party individually
consolidated.
4
David also testified that he and Amanda agreed about their proportionate responsibility for the
consolidated student loan. However, the specifics of this agreement were not contained in the transcript of
the hearing. Instead, this portion of the transcript indicates that David’s testimony was inaudible. (See
Div. Hrg., 6/30/10, p. 100.)

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as to how its division of property, which was not equal, was, nevertheless,

equitable.

{¶46} Although the parties agreed which one would receive which vehicle,

that each was entitled to one-half of the other’s retirement, agreed to split the

consolidated loan 60/40 with David paying the larger amount, agreed that David

would receive the marital home, and divided their remaining personal property

without requiring court intervention, they did not agree that the overall result was

equitable or that there was no need for an off-set or distributive award. In

reviewing the entire distribution of marital property, there is a significant

difference in the final result. While there may be a justified explanation for why

this unequal division is, nevertheless, equitable, the trial court failed to provide

any such explanation and an explanation is not obvious from the record.

{¶47} Therefore, based on the above, Amanda’s third assignment of error

and David’s fifth and sixth assignments of error are sustained to the extent that the

trial court’s judgment should be reversed and the matter remanded to determine an

equal division of the marital property based upon accurate values of that property

or to determine that an equal division would be inequitable, to provide reasons for

such a determination, and to then make an equitable division.

{¶48} In summation, we reverse this matter for the trial court’s failure to

(1) restore Amanda to her prior name; (2) properly calculate child support based

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upon the evidence presented as to David’s actual income; (3) determine the date of

termination of the marriage; (4) explain why each party was ordered to pay the

credit card debts that were in the other party’s name or to order the parties to be

responsible for the credit card debt incurred in each party’s respective name; (5)

explain the valuation placed on the 2000 Ford Explorer; (6) explain the division of

the student loans obligations between the parties; and (7) either distribute the

marital property/debt equally or explain how the significant discrepancy in the

distribution is, nevertheless, equitable. In addition, as previously noted, upon

remand the trial court should also correct its error in unilaterally modifying a

portion of the shared parenting plan by following the mandates of R.C. 3109.04.

{¶49} For all of these reasons, the judgment of the Common Pleas Court,

Family Division, of Marion County, Ohio, is affirmed in part, reversed in part, and

the matter remanded for further proceedings consistent with this opinion.

Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded

ROGERS, P.J., and PRESTON, J., concur.

/jlr

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