Machesky v. Machesky

[Cite as Machesky v. Machesky, 2011-Ohio-862.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

FRANK R. MACHESKY, JR., :
:
Plaintiff-Appellant, : Case No: 10CA3172
:
v. :
: DECISION AND
SHARI L. MACHESKY, : JUDGMENT ENTRY
:
Defendant-Appellee. : File-stamped date: 2-23-11

APPEARANCES:

Justin W. Skaggs, Skaggs Law Office, Jackson, Ohio, for Appellant.

Richard W. Clagg; Ater, Schmidt & Wissler, LLP; Chillicothe, Ohio, for Appellee.

Kline, J.:

{¶1} Frank R. Machesky, Jr. (hereinafter “Frank”), appeals the judgment of the

Ross County Court of Common Pleas, which granted him a divorce from Shari L.

Machesky (hereinafter “Shari”). On appeal, Frank argues against the trial court’s

distribution of the marital debt. The trial court did not place values on either Shari’s

Kohl’s card debt or her Elder Beerman card debt. And for that reason, Frank contends

that the trial court could not have complied with R.C. 3105.171(B). We, however, find

no merit in Frank’s argument. Because Frank did not testify as to the values of these

debts, he has waived any error related to the valuations of the Kohl’s and Elder

Beerman cards. Furthermore, because the trial court distributed the marital debt in a

manner consistent with Frank’s objections to the magistrate’s decision, he invited any
Ross App. No. 10CA3172 2

potential error. Next, Frank contends that the trial court’s award of spousal support is

unreasonable and excessive. Because Frank cannot demonstrate that the spousal-

support award is unreasonably high, and because the R.C. 3105.18(C)(1) factors

support the award, we cannot find that the trial court abused its discretion. Accordingly,

we overrule Frank’s assignments of error and affirm the judgment of the trial court.

I.

{¶2} Frank and Shari were married on August 13, 1988. On October 6, 2006,

Frank filed a complaint for divorce.

{¶3} Frank has a bachelor’s degree in chemistry and works as a senior chemist.

In 2007, Frank earned $78,259.26 in gross wages. Shari has a high school diploma

and works as a server in a restaurant. In 2007, Shari earned gross wages of

$10,887.32.

{¶4} The magistrate held a final divorce hearing on January 28, 2008. Prior to the

hearing, Frank and Shari had resolved all issues except for spousal support, child

support, and the division of the marital debt. (For example, the parties agreed that

Frank would keep the marital real property.) Thus, at the hearing, Frank and Shari

testified as to their respective incomes and the various marital debts. Neither Frank nor

Shari, however, testified as to the amount of debt on either Shari’s Kohl’s card or her

Elder Beerman card (both of which, Frank had been paying).

{¶5} On February 14, 2008, the magistrate issued his decision. The magistrate

recommended that Frank pay $531.24 per month in child support. Additionally, the

magistrate recommended that Frank pay the following debts: the Chase credit card

($10,241.96); a Bank of America debt ($11,928.70); the Discover credit card ($5,118); a
Ross App. No. 10CA3172 3

second Bank of America debt ($30,781.52); the Atomic Employees’ Credit Union debt

($500); the Kohl’s card debt (no value assigned); the Elder Beerman card debt (no

value assigned); both mortgages on the marital real property; and the monthly car

payments. Finally, the magistrate (1) imputed $18,720 in income to Shari for child

support and spousal support purposes and (2) recommended that spousal support was

not “reasonable or appropriate.”

{¶6} Both Frank and Shari filed objections to the magistrate’s decision. Frank

objected to having to pay Shari’s Kohl’s card debt, her Elder Beerman card debt, and

her automobile-related expenses. And Shari objected to (1) her $18,720 in imputed

income and (2) the finding that spousal support was not reasonable or appropriate.

{¶7} On June 10, 2010, the trial court entered its decree of divorce. In relevant

part, the trial court ordered Shari to pay the Kohl’s card debt, the Elder Beerman card

debt, and her own monthly car payment. The trial court did not, however, assign values

to any of these debts. Additionally, the trial court found the following: “Spousal Support

is appropriate given the duration of marriage, earning abilities and education of the

parties, and other factors set forth in Ohio Revised Code [Section] 3105.18. [Frank]

shall pay to [Shari], effective the date of this decree, as and for spousal support, the

sum of $750.00 per month, for a period of forty-eight (48) consecutive months.” Decree

of Divorce at 6. And finally, the trial court ordered Frank to pay $524.86 per month in

child support.

{¶8} Frank appeals and asserts the following two assignments of error: I. “THE

TRIAL COURT ERRED BY FAILING TO SUFFICIENTLY EXPLAIN ITS REASONING

FOR AWARDING DEFENDANT-APPELLEE SPOUSAL SUPPORT SO THAT THE
Ross App. No. 10CA3172 4

REVIEWING COURT CAN DETERMINE THAT SUCH AWARD COMPLIES WITH

LAW.” And, II. “THE TRIAL COURT’S AWARD OF SPOUSAL SUPPORT WAS

UNREASONABLE, EXCESSIVE, AND AN ABUSE OF DISCRETION.”

II.

{¶9} In his first assignment of error, Frank argues against the trial court’s division

of the marital debt. Here, the trial court did not place monetary values on either the

Kohl’s card debt or the Elder Beerman card debt. And because there is no evidence as

to the amount of debt on either of these cards, Frank contends that the trial court could

not have complied with R.C. 3105.171(B), which, in turn, tainted the court’s review of a

necessary factor when it calculated spousal support. See R.C. 3105.18(C)(1)(i).

{¶10} “Trial courts must divide marital property equitably between the spouses.

R.C. 3105.171(B). In most cases, this requires that marital property be divided equally.

Id. at (C)(1). However, if the trial court determines that an equal division would produce

an inequitable result, it must divide the property in a way it deems equitable. Id.”

O’Rourke v. O’Rourke, Scioto App. No. 08CA3253, 2010-Ohio-1243, at ¶15.

Furthermore, “[a] trial court must take into account marital debt when dividing marital

property.” Smith v. Emery-Smith, Geauga App. No. 2009-G-2941, 2010-Ohio-5302, at

¶45 (internal quotation omitted). Therefore, under R.C. 3105.171(C)(1), marital debt

should also be divided equally unless such a division would be inequitable. See

Beamer v. Beamer, Warren App. No. CA2009-08-107, 2010-Ohio-3143, at ¶13; Elliott v.

Elliott, Ross App. No. 05CA2823, 2005-Ohio-5405, at ¶16 (“[A]n equitable division of

marital property necessarily implicates an equitable division of marital debt.”) (citations

omitted). “Because the trial court possesses great discretion in reaching an equitable
Ross App. No. 10CA3172 5

distribution, we will not reverse its ultimate division of property [or debt] absent an abuse

of discretion.” O’Rourke at ¶15 (citations omitted). An abuse of discretion connotes

more than a mere error of judgment; it implies that the court’s attitude is arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

219.

{¶11} Frank argues that the trial court could not have equitably divided the marital

debt without first placing values on the Kohl’s card debt and the Elder Beerman card

debt. In considering Frank’s argument, we acknowledge the following principle: “Before

the court makes a distribution of property, it must determine the value of the parties’

marital assets. * * * Although the court has discretion in assessing a value to the parties’

property, it has no discretion to omit valuation altogether.” King v. King (Mar. 20, 2000),

Adams App. No. 99 CA 680, citing Willis v. Willis (1984), 19 Ohio App.3d 45, 48 (other

citations omitted). See, also, O’Rourke at ¶16 (“[B]efore a court can distribute property,

the court must value it. Indeed, a trial court must place a monetary value on every

contested asset of the parties in a divorce proceeding.”) (citations omitted). Here, we

believe that the same principle should apply to marital debt. This is so because trial

courts distribute marital property and marital debt under the same statute – R.C.

3105.171(C)(1). And if trial courts must place monetary values on marital property, they

should also have to place monetary values on marital debt.

{¶12} Nevertheless, we disagree with the crux of Frank’s argument. Frank did not

present evidence as to the value of the Kohl’s card debt or the Elder Beerman card

debt. And here, we believe that, “if a party fails to present sufficient evidence of

valuation, that party has presumptively waived the right to appeal the distribution of
Ross App. No. 10CA3172 6

those assets [or debts] because the trial court can only make decisions based on the

evidence presented[.]” Roberts v. Roberts, Franklin App. No. 08AP-27, 2008-Ohio-

6121, at ¶22, citing Hruby v. Hruby (June 11, 1997), Columbiana App. No. 93-C-9. See,

also, Davis v. Davis, Cuyahoga App. No. 82343, 2003-Ohio-4657, at ¶18; Walls v. Walls

(May 4, 1995), Highland App. No. 94 CA 849 (Grey, J., with one judge concurring in

judgment only); Wright v. Wright (Nov. 10, 1994), Hocking App. No. 94CA02 (Harsha,

J., concurring), overruled on other grounds. But, see, Brown v. Brown, Madison App.

No. CA2008-08-021, 2009-Ohio-2204, at ¶11 (“A trial court commits reversible error if it

makes a division of marital property and was not presented with any evidence of

valuation of marital property and where it failed to assign a value in its decree.”);

Basham v. Basham, Scioto App. No. 06CA3085, 2007-Ohio-3941, at ¶11 (“[W]hen

parties fail to adduce evidence or stipulate to the value of important and substantial

marital assets, trial courts should require the parties to do so.”) (Abele, J., with one

judge concurring in judgment only and one judge concurring in part, dissenting in part).

We have considered the competing approaches in Roberts and Brown, and we find that

the waiver approach is more appropriate to the present case. See, generally, Roberts

at ¶17-24 (discussing the appropriateness of the waiver approach). In other words, the

trial court did not abuse its discretion by deciding the case based on the evidence

presented – even if there was no evidence related to the amount of debt on the Kohl’s

and Elder Beerman cards. See Hruby (“[I]f the trial court required the parties to submit

further evidence on the issue of valuation, the court would be interfering with the parties’

right to try their own case.”), citing Walls.
Ross App. No. 10CA3172 7

{¶13} Because Frank had been paying off the Kohl’s and Elder Beerman cards, he

could have presented evidence as to the amount of debt on these accounts. But he

failed to do so. As the Roberts court explained, “Given the parties’ total failure to give

any present values to the property divided between them, any resultant error was due to

the parties’ failure to provide sufficient evidence for the court to use in determining an

equitable distribution.” Roberts at ¶24. For similar reasons, Frank has waived any error

resulting from the trial court not assigning specific values to the Kohl’s and Elder

Beerman cards. And based on the lack of evidence related to these debts, Frank can

only speculate that the trial court may not have equitably divided the marital debt. He

cannot, however, “point to any evidence demonstrating that the court’s division was

anything other than equitable.” Id.

{¶14} Furthermore, Frank has invited any error related to the distribution of the

marital debt. In his objections to the magistrate’s decision, Frank argued that he “never

agreed to assume [Shari’s] personal debts, such as * * * her Kohl’s credit card or the

Elder Beerman account.” And based on this objection, the trial court ordered Shari to

pay these particular debts. Therefore, the trial court divided the marital debt in a

manner consistent with Frank’s objections to the magistrate’s decision. He cannot now

complain that the trial court agreed with his objections. See Melvin v. Martin, Lawrence

App. No. 05CA44, 2006-Ohio-5473, at ¶12-13 (applying the invited-error doctrine).

{¶15} Accordingly, we overrule Frank’s first assignment of error.

III.
Ross App. No. 10CA3172 8

{¶16} In his second assignment of error, Frank contends that the trial court erred in

awarding Shari $750 per month for four years in spousal support. Essentially, Frank

contends that the award is too high and, therefore, unreasonable.

{¶17} “A trial court has broad discretion in establishing and modifying a spousal

support award.” Cassidy v. Cassidy, Pike App. No. 03CA721, 2005-Ohio-3199, at ¶27,

citing Schultz v. Schultz (1996), 110 Ohio App.3d 715, 724. See, also, Addington v.

Addington, Scioto App. No. 05CA3034, 2006-Ohio-4871, at ¶8. “Thus, we will not

reverse a spousal support award absent an abuse of discretion.” Cassidy at ¶27.

{¶18} “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 to, any

party’s contribution to the acquisition of a professional degree of the other party; (k) The
Ross App. No. 10CA3172 9

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.” R.C. 3105.18(C)(1)(a)-(n).

{¶19} “When making an award, the trial court must consider all of the factors under

R.C. 3105.18(C), and must not base its determination upon any one of the factors taken

in isolation.” Brown v. Brown, Pike App. No. 02CA689, 2003-Ohio-304, at ¶10, citing

Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, paragraph one of the syllabus.

Furthermore, “[t]he trial court must indicate the basis for its spousal support award in

sufficient detail to enable us to determine that ‘the award is fair, equitable and in

accordance with the law.’” Brown, 2003-Ohio-304, at ¶10, quoting Kaechele at

paragraph two of the syllabus.

{¶20} Here, we find that the trial court did not abuse its discretion. Frank contends

that the spousal support award is too high, especially in light of (1) the distribution of the

marital debt and (2) his other court-ordered payments. See R.C. 3105.18(C)(1)(a)&(i).

To support his argument, Frank cites Hesseling v. Hesseling, Ross App. No. 08CA3034,

2009-Ohio-3116. In Hesseling, the husband’s annual gross income was $85,517, and

his court-ordered payments totaled $5,384 per month. Id. at ¶25. As we explained in

Hesseling, “The court ordered payments are 76% of Mr. Hesseling’s monthly gross

(pretax) income. And this does not take into account his monthly personal expenses,
Ross App. No. 10CA3172 10

which total over $2,000 when we include his credit card debt and school loans in

addition to living expenses. * * * In essence, the court has ordered him to pay out more

than he takes in. In the absence of any evidence to show that he is voluntarily ‘under-

employed’ or that he is solely responsible for the couple’s unrealistic lifestyle, this is

unreasonable.” Id. at ¶26-27. For these reasons, we overturned the trial court’s

spousal-support award.

{¶21} Essentially, Frank contends that the present case is similar to Hesseling. But

after reviewing the record, we find Hesseling to be distinguishable. Here, we find that

Frank’s court-ordered payments are not as onerous as the court-ordered payments in

Hesseling. Frank’s 2007 gross income was $78,259.26, and, in his brief, Frank lists his

various financial obligations. Frank’s spousal support ($750) and child support

($524.86) payments equal $1,274.86 per month. Furthermore, Frank must pay $1,604

per month in mortgage payments and $1,080 per month in other marital-debt-related

payments. (We have taken these figures from Frank’s own trial brief.) These payments

equal $3,958.86 per month – or, put another way, 60.7% of his monthly gross income.

The husband in Hesseling, however, had 76% of his monthly gross income consumed

by court-ordered payments. Id. at ¶26. Furthermore, taking all of Frank’s monthly living

expenses into account, he claims total monthly expenditures of $5,963.86. (Again, we

took Frank’s monthly living expenses from his own trial brief. Frank has asked us to

take “judicial notice” of some additional monthly expenses. However, because the

record contains no evidence of these additional expenses, we have not considered

them in resolving Frank’s second assignment of error.) In this instance, the trial court

did not have to accept Frank’s own assessment of his monthly living expenses. See,
Ross App. No. 10CA3172 11

generally, Avery v. Avery, Greene App. No. 2001-CA-100, 2002-Ohio-1188 (“In deciding

an appropriate amount of spousal support, trial courts do not have to accept a party’s

estimate of expenses, particularly where supporting documents are not provided.”).

Regardless, $5,963.86 is less than Frank’s gross monthly income of $6,521.61. In

contrast, the husband in Hesseling had total monthly expenditures that were greater

than his monthly gross income. Hesseling at ¶26. Additionally, the property allocation

in the present case is substantially different than the property allocation in Hesseling.

The husband in Hesseling “receiv[ed] assets with a negative value of approximately

$54,000.” Id. at ¶27. But here, Frank cannot demonstrate that he received any assets

with a negative value.

{¶22} For the foregoing reasons, we find Hesseling to be distinguishable from the

present case, and Frank cannot rely on Hesseling to demonstrate that the spousal-

support award is unreasonably high.

{¶23} Moreover, as we recognized in Hesseling, “simply because the combined

effects of the property allocation * * * and the support awards result in a short-term

negative cash flow does not make the spousal support award unreasonable per se. In

situations where the parties live far beyond their means, the economic reality induced

by divorce will often dictate such a result.” Id. at ¶24. Here, the amount of unsecured

debt demonstrates that Frank and Shari may have lived beyond their means. And

unquestionably, the divorce has resulted in dramatic changes to Shari’s lifestyle. She is

moving from the marital home to an apartment, and she has far less earning power than

Frank does. Thus, it is not unreasonable to expect that Frank may also have to adjust

his lifestyle under the terms of the divorce. See R.C. 3105.18(C)(1)(g).
Ross App. No. 10CA3172 12

{¶24} Finally, many of the R.C. 3105.18(C)(1) factors support the trial court’s

spousal-support award. First, Frank has a much greater earning ability than Shari.

Even after subtracting his spousal-support-and-child-support payments, Frank earns

$62,960.94 in gross income per year (based on his 2007 earnings). In contrast, Shari

works as a restaurant server and, after adding the spousal-support-and-child-support

payments, earns far less than that (even with $18,720 in imputed income, $34,018.32

per year). See R.C. 3105.18(C)(1)(b). Second, because he has a college degree in a

specialized field, Frank has received more education than Shari has. See R.C.

3105.18(C)(1)(h). And third, because Frank and Shari were married for nearly twenty

years, the marriage was of a long duration. See R.C. 3105.18(C)(1)(e). In contrast,

Frank bases his entire argument on the spousal-support award being too high and,

therefore, unreasonable. As we noted above, Frank has not demonstrated that the

spousal-support payments are unreasonably high. Furthermore, we are mindful of our

standard of review. Under the abuse-of-discretion standard, “a reviewing court may not

merely substitute its judgment for that of the trial court.” Melvin at ¶7, citing In re Jane

Doe I (1991), 57 Ohio St.3d 135, 137-138. Thus, after considering all of the R.C.

3105.18(C)(1) factors, we cannot find that the trial court abused its discretion as to

spousal support.

{¶25} Accordingly, we overrule Frank’s second assignment of error. Having

overruled both of his assignments of error, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED.
Ross App. No. 10CA3172 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Ross County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Harsha, P.J.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment and Opinion as to Assignment of Error II;
Concurs in Judgment Only as to Assignment of Error I.

For the Court

BY:_____________________________
Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.