[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.
Machesky v. Machesky
Combined Opinion