Dindal v. Dindal

[Cite as Dindal v. Dindal, 2009-Ohio-3528.]

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

LISA DINDAL,

PLAINTIFF-APPELLEE, CASE NO. 5-09-06

v.

JERRY DINDAL, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court
Domestic Relations Division
Trial Court No. 2007-DR-0043

Judgment Affirmed

Date of Decision: July 20, 2009

APPEARANCES:

John C. Filkins for Appellant

Howard A. Elliott for Appellee
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PRESTON, P.J.

{¶1} Defendant-appellant, Jerry Dindal (hereinafter “Jerry”), appeals the

Hancock County Court of Common Pleas’ judgment entry granting plaintiff-

appellee’s, Lisa Dindal’s (hereinafter “Lisa”), complaint for divorce. For the

reasons that follow, we affirm.

{¶2} Jerry and Lisa were married on May 23, 1997. (Doc. No. 1). The

parties had a child together prior to the marriage, Danielle Dindal (D.O.B.

1/04/95). (Id.). Jerry and Lisa both have one child from their previous

relationships.

{¶3} On February 9, 2007, Lisa filed a complaint for divorce. (Id.). On

September 4, 2007, the matter came on for a final hearing. On December 7, 2007,

the magistrate issued his decision. (Doc. No. 49). On February 11, 2008 and

February 25, 2008, Jerry filed objections and supplemental objections to the

magistrate’s decision. (Doc. Nos. 54-55). The trial court overruled the objections

on December 4, 2008. (Doc. No. 59).

{¶4} On February 14, 2009, the trial court issued its final judgment of

divorce. (Doc. No. 60). On March 9, 2009, Jerry filed a notice of appeal. (Doc.

No. 68). Jerry now appeals raising five assignments of error for our review. We

have elected to address Jerry’s assignments of error out of the order they appear in

his brief to this Court.

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ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEN IT FAILED TO REQUIRE THE APPELLEE TO
ESTABLISH THE VALUE OF HER 401K AND PENSION.

{¶5} In his second assignment of error, Jerry argues that the trial court

erred as a matter of law when it failed to require Lisa to establish the value of her

401(k) and pension; and therefore, the trial court could not have equitably divided

the parties’ retirement plans. Lisa, on the other hand, argues that the trial court did

not err in failing to value her 401(k) and pension since there was no evidence in

the record to support a value. Furthermore, Lisa argues that Jerry was provided

with discovery relating to the value of these assets, but never raised the issue at the

hearing. Lisa also points out that there was no evidence presented of any great

disparity between the values of the parties’ pensions or 401(k) accounts; and

therefore, the trial court did not abuse its discretion by ordering that each party

retain their respective pensions and 401(k) accounts subject to any loans on those

assets. We agree with Lisa.

{¶6} Retirement benefits acquired during a marriage are marital assets

that must be equitably divided between the spouses in a final judgment of divorce.

R.C. 3105.171(A)(3)(a)(i), (ii); Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 178, 559

N.E.2d 1292. “Although an equal division is a starting point when allocating

marital property and debt, a decision need not be equal to be equitable.” Shaffer v.

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Shaffer, 3d Dist. No. 11-04-22, 2005-Ohio-3884, ¶25, citing R.C. 3105.171(C)(1);

Lust v. Lust, 3d Dist. No. 16-02-04, 2002-Ohio-3629, ¶25. Trial courts generally

have broad discretion in determining the equitable distribution of property in

divorce cases; and therefore, we review the overall appropriateness of the trial

court’s property distribution under and abuse of discretion standard. Martin v.

Martin, 3d Dist. No. 9-03-47, 2004-Ohio-807, ¶6, citing Lust, 2002-Ohio-3629;

Bisker v. Bisker (1994), 69 Ohio St.3d 608, 635 N.E.2d 308; Martin v. Martin

(1985), 18 Ohio St.3d 292, 480 N.E.2d 1112. An abuse of discretion implies that

the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

{¶7} The evidence presented regarding the parties’ 401(k) and retirement

accounts at the final hearing was limited. Jerry estimated that the value of his

401(k) was around $4,400 and the value of his retirement account was around

$20,000. (Sept. 4, 2007 Tr. at 23). Jerry testified that he worked at his place of

employment for eleven (11) years. (Id.). Plaintiff’s exhibit one, a statement of

Jerry’s 401(k) account, revealed the value of this account to be $4,127.95. (Id. at

24-25); (Plaintiff’s Ex. 1). Jerry also testified that he has an outstanding $1,500

loan against his 401(k). (Sept. 4, 2007 Tr. at 26-27). Plaintiff’s exhibit one

confirmed that Jerry has an outstanding loan of $1,379.15. (Plaintiff’s Ex. 1).

With regard to Lisa’s accounts, Lisa testified that she has 401(k) and retirement

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accounts through her employer, Whirlpool, where she worked for twenty-three

(23) years. (Sept. 4, 2007 Tr. at 173-74). She testified that she began earning these

benefits prior to her ten-year marriage. (Id. at 174). She also testified that she

received one hundred dollar ($100) bonds from her employer, sixteen (16) of

which were received during the marriage. (Id. at 174-75, 201). Lisa estimated that

the bonds were currently worth half of their face value, or $50 each, since they

take seventeen (17) years to mature. (Id. at 175, 201). Lisa testified that seventeen

dollars ($17) is deducted weekly from her paycheck for an outstanding loan

against her 401(k). (Id. at 176). The record indicates the amount of Lisa’s

outstanding 401(k) loan is $7,470.93. (Doc. No. 42). No other testimony

regarding Lisa’s 401(k) or retirement accounts was presented at the hearing. The

only other evidence in the record regarding the amount of Lisa’s 401(k) is the

figure she provided on her personal history and financial affidavit, which was

$60,000. (Doc. No. 13). On the other hand, neither party testified to any great

disparity between the values of their retirement and 401(k) accounts.

{¶8} Based upon this limited evidence, the trial court concluded that

“[e]ach Party should keep free and clear of the other, any retirement, pension,

401(k), or other benefits they may have in their individual names from

employment. Each Party shall hold the other harmless as to any loans against any

of these benefits.” (Feb. 13, 2009 JE, Doc. No. 60); (See, also, Dec. 7, 2007 JE,

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Doc. No. 49). The magistrate also made a finding that, “[b]oth parties have

retirement benefits, although the testimony does not accurately show how much

each one has. However, neither party testifies to any huge disparity in this area.”

(Dec. 7, 2007 JE, Doc. No. 49, ¶46).

{¶9} We find that Jerry’s arguments lack merit. Although it has been held

that a trial court abuses its discretion when it fails to determine the market value of

property it divides in a divorce, Jerry has waived this argument by his failure to

present any evidence regarding the value of Lisa’s retirement or 401(k) accounts

in the trial court. Eisler v. Eisler (1985), 24 Ohio App.3d 151, 493 N.E.2d 975;

Pearlstein v. Pearlstein, 11th Dist. No. 2008-G-2837, 2009-Ohio-2191, ¶147;

Ferrero v. Ferrero (June 8, 1999), 5th Dist. No. 98-CA-00095, at *6; Morris v.

Morris (Aug. 22, 1990), 4th Dist. No. 89CA27, at *3. See, also, Kauble v. Pfeiffer,

3d Dist. No. 9-03-36, 2003-Ohio-6988, ¶¶37-38. Jerry is precluded from raising

this issue under the invited error doctrine as well. Roberts v. Roberts, 10th Dist.

No. 08AP-27, 2008-Ohio-6121, ¶21, citing Hruby v. Hruby (June 11, 1997), 7th

Dist. No. 93-C-9 (husband waived any argument regarding the valuation of marital

property when he failed to submit any evidence of valuation at trial); Davis v.

Davis, 8th Dist. No. 82343, 2003-Ohio-4657, ¶18.

{¶10} Aside from these procedural bars, we reject the merits of Jerry’s

arguments for three reasons. First, Eisler’s rule—that a trial court abuses its

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discretion when it fails to determine the market value of property it divides in a

divorce—has been more recently modified to: a trial court errs when it fails to

determine the value of each piece of property it considered “whenever feasible.”

Buckles v. Buckles (1988), 46 Ohio App.3d 102, 109, 546 N.E.2d 950. Given the

lack of evidence regarding the value of Lisa’s pension or 401(k), this case presents

the sort of fact pattern for which the modified rule in Buckles was created.

Second, several districts have rejected Jerry’s argument that it is the trial court’s

duty to require the parties to submit more evidence on the issue of asset valuation.

Roberts, 2008-Ohio-6121, at ¶¶21-25; Hruby, 7th Dist. No. 93-C-9, at *3-4; Walls

v. Walls (May 4, 1995), 4th Dist. No. 94-CA-849, at *5 (“In a divorce case, as in

any other case, it is the responsibility of the parties to put forth the evidence they

believe is relevant and necessary for a just decision. Each party tries his own case,

and the court reaches a decision based on the evidence that the parties have

presented. A court does not abuse its discretion where the evidence before it to

show the value of the marital assets is vague.”).

{¶11} Third, when presented with a similar fact pattern as presented here,

the Court of Appeals for the Seventh District rejected the bright line rule that Jerry

sets forth. Pitzo v. Pitzo (Mar. 2, 1989), 7th Dist. No. 88-C-10. The husband-

appellant in Pitzo, like Jerry herein, appealed the trial court’s equal division of his

pension, arguing that the trial court erred because it did not have evidence of the

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pension’s present market value. 7th Dist. No. 88-C-10, at *1. In support of his

argument, the husband-appellant in Pitzo argued that the trial court violated the

rule in Eisler, supra. Id. The wife-appellee in Pitzo, like Lisa herein, argued, in

pertinent part, that her husband’s failure to provide accurate information at the

hearing regarding the value of his pension prevented him from arguing this issue

on appeal. Id.

{¶12} Addressing the assignment of error, the Court in Pitzo found Eisler

distinguishable based on the fact that Eisler involved several unvalued assets, not

merely a pension. Id. The Court also rejected both parties attempt to establish

what it called bright line rules, stating:

Each party proposes a blanket rule applicable in all situations.
Appellant argues that in any case where the value of an asset is
undetermined, the court must require the parties to submit
evidence or divide the asset equally. Appellee argues that in any
case where evidence is not introduced, an appellate court must
decline review. This court has consistently held that ‘* * * flat
rules have no place in determining a property division.’ Cherry
v. Cherry (1981), 66 Ohio St.2d 348, 356 [20 O.O.3d 318]. See,
also, Berish v. Berish (1982), 69 Ohio St.2d 318, 320 [23 O.O.3d
296]; Koegel v. Koegel (1982), 69 Ohio St.2d 355, 357 [23 O.O.3d
320]; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218.
These cases hold that ‘* * * [a] trial court must have discretion
to do what is equitable upon the facts and circumstances of each
case.’ Cherry, supra, at 355; Berish, supra, at 320; Koegel, supra,
at 357; Blakemore, supra, at 218.

Accordingly, a reviewing court is limited to determining
whether, considering the totality of circumstances, the trial court
abused its discretion. Id. at 218-220.

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7th Dist. No. 88-C-10, at *2, quoting Briganti v. Briganti (1984), 9 Ohio St.3d

220, 221-22, 459 N.E.2d 896. We find the reasoning of Pitzo and Briganti

persuasive here. Reviewing the totality of the facts and circumstances in the

record, we cannot conclude that the trial court abused its discretion in its division

of the parties’ retirement benefits. Since the values of these assets were not

clearly established by the evidence at trial, the trial court awarded each party their

respective retirement and 401(k) accounts subject to any loans he/she may have

taken against their accounts. Aside from that, as the trial court noted, there was no

evidence presented at the hearing to suggest that the value of the parties’

retirement or 401(k) assets was greatly disparate. Under these circumstances, we

cannot find that the trial court abused its discretion.

{¶13} Jerry’s second assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED AS A MATTER OF LAW IN
AWARDING SPOUSAL SUPPORT TO APPELLEE IN
CONTRAVENTION OF R.C. 3105.18.

{¶14} In his first assignment of error, Jerry argues that the trial court erred

in awarding Lisa spousal support because the trial court failed to consider: he had

to acquire a separate residence for eight months prior to the final hearing; Lisa was

able to live in the marital home without paying the mortgage for the same eight

months; the debt to income ratio of the parties; Lisa’s failure to establish financial

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need; the value of Lisa’s retirement benefits since the value was not determined;

the parties’ standard of living; and Lisa received most of the marital property.

Lisa, on the other hand, argues that the trial court properly considered the R.C.

3105.18 factors, and that living expenses is not among those enumerated in the

statute. She further argues that the parties have about a $13,000/year income

disparity. Under these circumstances, Lisa argues that the trial court did not abuse

its discretion by awarding her spousal support.

{¶15} R.C. 3105.18 provides, in relevant part:

(C)(1) In determining whether spousal support is appropriate
and reasonable, and in determining the nature, amount, and
terms of payment, and duration of spousal support, which is
payable either in gross or in installments, the court shall
consider all of the following factors:

(a) The income of the parties, from all sources, including, but
not limited to, income derived from property divided, disbursed,
or distributed under section 3105.171 of the Revised Code;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional
conditions of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party,
because that party will be custodian of a minor child of the
marriage, to seek employment outside the home;
(g) The standard of living of the parties established during
the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including
but not limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training,
or earning ability of the other party, including, but not limited

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to, any party’s contribution to the acquisition of a professional
degree of the other party;
(k) The time and expense necessary for the spouse who is
seeking spousal support to acquire education, training, or job
experience so that the spouse will be qualified to obtain
appropriate employment, provided the education, training, or
job experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of
spousal support;
(m) The lost income production capacity of either party that
resulted from that party’s marital responsibilities;
(n) Any other factor that the court expressly finds to be
relevant and equitable.

A trial court must make specific findings “to enable a reviewing court to

determine the reasonableness of its order to grant or deny a request for spousal

support and that the relevant factors within R.C. 3105.18 were considered.”

Hendricks v. Hendricks, 3d Dist. No. 15-08-08, 2008-Ohio-6754, ¶31, quoting Lee

v. Lee, 3d Dist. No. 17-01-05, 2001-Ohio-2245. However, a trial court’s failure to

“specifically enumerate” the factors is not reversible error. Hendricks, 2008-Ohio-

6754, at ¶31, citations omitted. Appellate review of a trial court’s spousal support

determination is under an abuse of discretion standard. Id. at ¶29, citing Siefker v.

Siefker, 3d Dist. No. 12-06-04, 2006-Ohio-5154, ¶15. An abuse of discretion is

more than an error of law; rather, it implies that the trial court’s attitude was

unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.

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{¶16} The magistrate began his spousal support analysis by setting forth

R.C. 3105.18. (Dec. 7, 2007 JE, Doc. No. 49). Reviewing the statutory factors,

the magistrate found:

44. The Defendant in this matter has significantly more income
annually than the Plaintiff. The Defendant’s income for child
support purposes exceeds $63,000.00 each year, while the
Plaintiff earns $36,000.00. Additionally, the Plaintiff is to
receive $603.00 each month in child support from the Defendant.
Even with adjustments for child support, both paid and
received, the Plaintiff’s “income” is almost $13,000.00 a year
below the Defendant’s. ($63,000.00 - $7,200.00 = $55,800.00 vs.
$36,000.00 + $7,200.00 = $43,200.00). This calculation does not
take into account any sums either party receives as child support
for their other children.

45. Neither party testifies to any significant health issues that
would prevent them from working. There is also no testimony
regarding the relative earning capacities of the parties.

46. Both parties have retirement benefits, although the testimony
does not accurately show how much each one has. However,
neither party testifies to any huge disparity in this area.

47. The parties have been married 10 years. Both parties have
completed high school.

48. Other factors set forth above either have no impact on the
spousal support analysis of the parties have not provided any
testimony on these issues.

49. Based upon the testimony presented by the Defendant, if the
court were to consider his living expenses, the testimony shows
that his average monthly expenses total approximately $2,900.00
per month. This figure takes into account the amounts
contained in “Plaintiff’s Exhibit 4” and updates or corrections
testified to by the Defendant.

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50. Based upon the testimony and evidence presented, having
considered all of the relevant factors set forth above, whether or
not specifically mentioned herein, the undersigned concludes
that the Defendant should pay spousal support to the Plaintiff in
the amount of $300.00 per month for a period of 24 months.
This support should be taxable to the Plaintiff as income and
deductible by the Defendant. The court should not retain
jurisdiction over this issue.

(Id.). The trial court, after reviewing the magistrate’s decision, concluded that

“[b]ased upon the testimony and evidence presented to the court, Defendant shall

pay the amount of $300.00 per month for a total of twenty-four (24) continuous

months to Plaintiff.” (Feb. 13, 2009 JE, Doc. No. 60).

{¶17} It is clear that the trial court reviewed the applicable R.C.

3105.18(C)(1) factors and specifically found that those factors not expressly

mentioned in its entry were either inapplicable or undeterminable from the

evidence presented at the final hearing. (Dec. 7, 2007 JE, Doc. No. 49). Based

upon evidence in the record, the trial court determined that Lisa was entitled to

$300.00 per month for twenty-four (24) months. We do not find this spousal

support order to be unreasonable, arbitrary, or unconscionable, and Jerry’s

arguments do not persuade us otherwise. We reject Jerry’s argument that the trial

court erred by not considering Lisa’s retirement benefits since he failed to present

any evidence on this issue. We also reject Jerry’s contention that the trial court

erred by failing to consider his living expenses because “living expenses” is not

among the enumerated R.C. 3105.18 factors, and, additionally, the trial court

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noted that it was aware of Jerry’s living expenses when it determined the spousal

support award. Derrit v. Derrit, 163 Ohio App.3d 52, 2005-Ohio-4777, 836

N.E.2d 39, ¶32; (Dec. 7, 2007 JE, Doc. No. 49). For all these reasons, we

conclude that the trial court did not abuse its discretion by ordering Jerry to pay

the aforementioned amount of spousal support.

{¶18} Jerry’s first assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED AS A MATTER OF LAW IN
ALTERNATING THE DEPENDENCY EXEMPTION FOR
THE MINOR CHILD BASED UPON THE FACT THAT THE
APPELLANT IS IN A HIGHER TAX BRACKET THAN THE
APPELLEE.

{¶19} In his third assignment of error, Jerry argues that the trial court erred

by alternating the child dependency exemption and that he should have been given

the exclusive right to the exemption as he is in a higher tax bracket. Lisa, on the

other hand, argues that the trial court did not err since: the parties agreed to

alternate the tax exemption at the hearing; as residential parent, she is the

presumed recipient of the exemption; and the trial court considered other relevant

factors besides just the parties’ tax brackets. We agree with Lisa that the trial

court did not err with regard to this issue.

{¶20} R.C. 3119.82 provides, in pertinent part:

Whenever a court issues, or whenever it modifies, reviews, or
otherwise reconsiders a court child support order, it shall

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designate which parent may claim the children who are the
subject of the court child support order as dependents for
federal income tax purposes as set forth in section 151 of the
“Internal Revenue Code of 1986,” 100 Stat. 2085, 26 U.S.C. 1, as
amended. If the parties agree on which parent should claim the
children as dependents, the court shall designate that parent as
the parent who may claim the children. * * * In cases in which
the parties do not agree which parent may claim the children as
dependents, the court shall consider, in making its
determination, any net tax savings, the relative financial
circumstances and needs of the parents and children, the
amount of time the children spend with each parent, the
eligibility of either or both parents for the federal earned income
tax credit or other state or federal tax credit, and any other
relevant factor concerning the best interest of the children.

R.C. 3119.82 provides that if the parties agree on which parent shall claim the

exemption then the court “shall” designate that parent as the parent to receive the

exemption. At the hearing, both Lisa and Jerry testified that they agreed that the

tax exemption should alternate every other year—Lisa claiming Danielle in the

odd numbered years and Jerry claiming Danielle in the even numbered years.

(Sept. 4, 2007 Tr. at 12, 140-41). The record also contains a pre-trial statement

submitted by Lisa containing a list of parties’ stipulations, including that “[t]he

Parties would alternate the tax exemption for the minor child.” (Doc. No. 42).

Since the record demonstrates that the parties agreed on this issue, we cannot

conclude that the trial court abused its discretion by awarding the tax exemption

consistent with the parties’ agreement. Glassner v. Glassner, 5th Dist. No.

2005CA00137, 2006-Ohio-514, ¶¶60-64; Carpenter v. Carpenter, 7th Dist. No. 07

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CO 344, 2009-Ohio-1199, ¶62. See, also, Harris v. Harris, 11th Dist. No. 2002-

A-81, 2003-Ohio-5350, ¶¶34-36. Aside from that, we reject Jerry’s argument that,

pursuant to Singer v. Dickinson (1992), 63 Ohio St.3d 408, 588 N.E.2d 806, he

was exclusively and automatically entitled to the child tax exemption by virtue of

the fact that he is in a higher tax bracket than Lisa. Although R.C. 3119.82

codified Dickinson’s rule—that a nonresidential parent may receive the tax

exemption when it produces a net tax savings for the parents in the best interests

of the child—R.C. 3119.82 also added several other new factors that a trial court

must consider when allocating the tax exemption. Bailey v. Bailey, 12th Dist. No.

CA2004-02-017, 2004-Ohio-6930, ¶27. These additional statutory factors

effectively “increase[ed] the court’s discretion in determining best interests to a

level beyond that of merely net tax savings.” Id. Additionally, the rule in

Dickinson was discretionary, not mandatory. Will v. Will (1996), 113 Ohio App.3d

8, 12-13, 680 N.E.2d 197. For all these reasons, we cannot find that the trial court

abused its discretion.

{¶21} Jerry’s third assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED IN ORDERING THAT THE
PARTIES FILE AN AMENDED TAX RETURN FOR THE
TAXABLE YEAR 2006 BASED UPON APPELLEE’S
FAILURE TO ESTABLISH ANY BASIS FOR SAME.
FURTHERMORE, GIVEN THE FACT THAT THE PARTIES
WERE SEPARATED THROUGHOUT THE TAXABLE YEAR

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2007 IT WAS ERROR FOR THE TRIAL COURT TO ORDER
THE PARTIES TO FILE JOINTLY IN THE TAXABLE YEAR
2007.

{¶22} In his fourth assignment of error, Jerry argues that the trial court

erred by ordering the parties to file an amended 2006 tax return and to file jointly

for the taxable year 2007. Jerry argues that he should be entitled to keep the entire

tax refund from the 2006 tax return since he was forced from the marital home and

needed to provide furnishings for his new apartment. With regard to the 2007 tax

return, Jerry argues that he and Lisa lived separately for almost the entire year, so

they should file separately. Lisa, on the other hand, argues that the trial court did

not abuse its discretion because Jerry took the entire tax refund from 2006, and the

parties were effectively married all of 2007 since the final hearing was held in

September 2007. We agree with Lisa that the trial court did not abuse its

discretion.

{¶23} When acting within its broad discretion in making an equitable

division of marital property in a divorce proceeding, a trial court has the authority

to order a spouse to amend his or her federal tax return. Bowen v. Bowen (1999),

132 Ohio App.3d 616, 636-37, 725 N.E.2d 1165; Cherry v. Cherry (Dec. 31,

1998), 6th Dist. No. OT-98-011, at *3; Andrew v. Andrew (Dec. 23, 1997), 3d

Dist. No. 7-96-04, at *6-7, citing Neeley v. Neeley (Nov. 14, 1984), 1st Dist. No.

C830928. Appellate review of the trial court’s decision in this regard is limited to

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whether the trial court abused its discretion. Bowen, 132 Ohio App.3d at 637;

Andrew, 3d Dist. No. 7-96-04, at *7; Cherry, 6th Dist. No. OT-98-011, at *3. An

abuse of discretion is more than an error of law or judgment; rather, it implies that

the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore, 5 Ohio St.3d at 219.

{¶24} R.C. 3105.171(A)(2)(a) provides that “during the marriage” for

purposes of equitably dividing marital assets, as defined in division (A)(3)(a),

generally means from the date of the marriage to the date of the final hearing. A

trial court does not abuse its discretion by finding that a tax refund received during

the marriage is marital property, even when the spouse receiving the refund filed

separately. Brewer v. Brewer, 5th Dist. No. 2003CA00087, 2004-Ohio-3531,

¶¶58-77.

{¶25} The final hearing occurred on September 4, 2007. (Doc. Nos. 41,

60). Jerry testified at the hearing that he filed his taxes married but separate in

2006 and claimed the parties’ minor child. (Sept. 4, 2007 Tr. at 28-29). Jerry

testified that he received a $5,022.00 federal tax refund and $354 state tax refund,

which he used to pay for his attorney and furnishings in his new apartment. (Id. at

29-31). Plaintiff’s exhibit two, a statement of account from H&R Block

Advantage, confirmed the amount of the refunds. (Plaintiff’s Ex. 2). Jerry also

testified that he did not place tax refunds into an escrow account as ordered by the

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court since he had already filed his taxes and purchased his furniture prior to the

court’s order. (Id. at 29). Lisa, on the other hand, testified that she did not file her

2006 taxes since she was waiting for the court to determine how the taxes would

be filed. (Id. at 141). Lisa testified that Jerry did not give her any of the 2006 tax

refunds he received, though she believed she was entitled to half. (Id. at 141-42).

Lisa testified that they generally received around a $7,000.00 tax refund when they

filed their taxes jointly. (Id. at 215).

{¶26} Based upon this evidence, the trial court found that:

The Plaintiff has not filed her 2006 taxes. Defendant has
filed his 2006 taxes and has claimed the minor child, Danielle,
and his other daughter not of this marriage. Defendant received
a federal refund in the amount of $5,022.00 and a refund from
the State of Ohio in the amount of $354.00. The Defendant did
not divide any refund received by him with Plaintiff.
The parties are ORDERED to file, and/or amend their
2006 tax returns in such a way as to maximize the net refund for
the Parties or minimize the net liability of the Parties. The
parties shall pay any net taxes owed by the Parties equally and
any net refunds shall be divided equally between the Parties.
The filing and/or refilling of the 2006 taxes shall be done within
21 days of the filing of the final judgment entry filed herein. The
Parties shall cooperate in filing the 2006 taxes.
The Parties shall cooperate to file their 2007 taxes in such
a way as to maximize the net refund for the Parties or minimize
the net liability of the Parties. The Parties shall equally pay any
net taxes owed by the Parties for 2007 and any net refunds shall
be equally divided between the Parties.

(Feb. 13, 2009 JE, Doc. No. 60).

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{¶27} Based upon our review of the record, we cannot conclude that the

trial court abused its discretion. The evidence established that Jerry filed his 2006

taxes, claiming the parties’ minor child, and received a substantial refund, which

he failed to share with Lisa. The evidence also supported finding that the parties

would likely see an increased return if they amended their 2006 tax return to file

jointly. That being said, the trial court only ordered that they re-file or amend the

2006 return “as to maximize the net refund * * * or minimize the net liability,”

and we believe that was reasonable under the circumstances. (Feb. 13, 2009 JE,

Doc. No. 60). See Andrew, 3d Dist. No. 7-96-04, at *6-7. We also find no abuse

of discretion in ordering the parties to cooperate on filing their 2007 tax returns

since the final hearing occurred in September 2007, and the final order of divorce

was not entered until February 2009. (Id.). Income that was earned prior to the

final hearing is considered marital property, and since the final hearing was in

September, it was reasonable to order the parties to cooperate in filing their 2007

tax returns. R.C. 3105.171(A)(2)(a). Furthermore, the trial court did not

specifically order how they should file the 2007 returns, except to maximize the

refund or limit their liability. Accordingly, the trial court did not abuse its

discretion in ordering the parties to cooperate in filing their 2007 tax returns and

amending or re-filing their 2006 tax returns.

{¶28} Jerry’s fourth assignment of error is, therefore, overruled.

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Case No. 5-09-06

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED AS A RESULT OF FINDING
THAT THE APPELLEE’S JEWELRY WAS HER SEPARATE
PROPERTY AND BY DENYING APPELLANT’S REQUEST
TO HAVE THE REMAINING ITEMS OF JEWELRY
APPRAISED WHEN APPELLEE FAILED TO DELIVER
SAME TO THE APPRAISER.

{¶29} In his fifth assignment of error, Jerry argues that the trial court erred

by awarding Lisa her jewelry as separate property. Jerry further argues that the

trial court erred by failing to order Lisa to deliver the remaining pieces of her

jewelry to the appraiser. Lisa argues that the evidence at the hearing established

that Jerry had given her the jewelry as gifts; and therefore the jewelry was

properly determined to be her separate property. We agree with Lisa.

{¶30} R.C. 3105.171(A) provides, in pertinent part:

(6)(a) “Separate property” means all real and personal property
and any interest in real or personal property that is found by the
court to be any of the following:
***
(vii) Any gift of any real or personal property or of an interest in
real or personal property that is made after the date of the
marriage and that is proven by clear and convincing evidence to
have been given to only one spouse.

“Clear and convincing evidence is that measure or degree of proof which will

produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established.” Cross v. Ledford (1954), 161 Ohio St. 469,

477, 120 N.E.2d 118.

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Case No. 5-09-06

{¶31} At the final hearing, Jerry testified regarding the jewelry as follows:

Q: And you gave your wife this jewelry, is that correct?
A: Correct.
Q: And the first thing you indicated as to jewelry was a bridal
set. Was that not her engagement ring?
A: Yeah.
Q: Okay. And the engagement ring you don’t consider a gift to
her when you asked her to marry you?
A: There is a difference there, because she never got to put that
ring on until the day we got married.
Q: So, the difference is what? It wasn’t a gift?
A: Marital assets.
Q: It’s a marital asset. A wedding ring is a marital asset?
That’s your testimony?
A: Yep.
Q: Okay. And you said my wedding band.
A: Wedding band she gave me.
Q: That’s a marital asset according to you, not a gift?
A: Correct.
Q: Okay. The diamond tennis bracelet?
A: Blue sapphire diamond tennis bracelet.
Q: You gave that to you wife?
A: Yes.
Q: Eighteen caret gold tennis bracelet you gave that to your
wife?
A: Yes.
Q: Half diamond heart necklace?
A: Half caret.
Q: Okay. You gave that to your wife?
A: Yep.
Q: A watch with diamonds on it. You gave that to your wife?
A: Correct.
Q: And the diamond pendent necklace with ruby caret earrings?
A: Correct.
Q: Gave that to your wife, correct?
A: Correct.
***
Q: These are things that you gave her during and over the ten
year marriage when you and Lisa resided together?

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Case No. 5-09-06

A: Correct.
Q: Some of these items, were they given for special occasions?
Christmas, birthdays, Mother’s Days, holidays?
A: Nope.
Q: Just over the course of your marriage because you wanted
your wife to have these things?
A: Right.

(Sept. 4, 2007 Tr. at 105-07). Likewise, Lisa testified:

Q: Now your husband testified this morning to several items of
jewelry. Is jewelry on that list?
A: No.
Q: Why not?
A: Because it’s a gift. He gave them to me. He loved me back
when, and he gave those items as gifts. I don’t consider them --
Q: In fairness, did you ever purchase gifts for your husband
during your marriage when you all were together?
A: Jewelry?
Q: Any kind of gifts?
A: Yeah.
Q: Did you ever buy him jewelry?
A: No. Well, he sent me a time or two to buy a watch for
himself. He wanted me to go out and pick it up for him.
Q: To your knowledge does he still own that watch?
A: I think so.
Q: And it’s not on any of these lists, why not?
A: It didn’t cost that much.
Q: And any other gifts that you bought your husband during the
entire time you were married and living together?
A: I bought gifts for him.
Q: Are they on any list?
A: No.
Q: Why not?
A: I don’t know.
Q: You consider gifts marital property?
A: No. Yeah, gifts are not marital property. Gifts are gifts.

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Case No. 5-09-06

(Id. at 171-72). Based upon both parties’ testimony, we conclude that the trial

court had clear and convincing evidence that Lisa’s jewelry was given to her as

gifts by Jerry during the course of the marriage. Pudlo v. Pudlo (June 29, 2001),

3d Dist. No. 5-2000-29, at *1. We also note that there was no evidence that these

gifts were conditional. See id. As such, we cannot conclude that the trial court

abused its discretion by failing to designate Lisa’s jewelry as marital property, nor

can we conclude that the trial court erred by failing to order Lisa to deliver her

remaining jewelry to be appraised. The trial court also properly ordered that Jerry

was entitled to keep his jewelry, namely his wedding band. (Feb. 13, 2009 JE,

Doc. No. 60).

{¶32} Jerry’s fifth assignment of error is, therefore, overruled.

{¶33} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed.

WILLAMOWSKI and SHAW, J.J., concur.

/jnc

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