Thomas v. Thomas

[Cite as Thomas v. Thomas, 2012-Ohio-2893.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

KATHLEEN A. THOMAS JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant/Cross-Appellee Hon. William B. Hoffman, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 11CAF090079
KENNETH D. THOMAS, ET AL.

Defendant-Appellee/Cross-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Domestic Relations
Division, Case No. 09DRA03121

JUDGMENT: Affirmed in part, Reversed in part, and
Remanded

DATE OF JUDGMENT ENTRY: June 25, 2012

APPEARANCES:

For Plaintiff-Appellant/Cross-Appellee For Defendant-Appellee/Cross-Appellant

ANTHONY M. HEALD JOEL R. CAMPBELL
125 N. Sandusky Street Strip, Hoppers Leithart,
Delaware, Ohio 43015 McGrath & Terlecky Co. LPA
575 South Third Street
Columbus, Ohio 43215
Delaware County, Case No. 11CAF090079 2

Hoffman, J.

{¶1} Plaintiff-appellant/cross-appellee Kathleen A. Thomas (“Wife”) appeals the

August 9, 2011 Decree of Divorce entered by the Delaware County Court of Common

Pleas, which sustained in part and overruled in part her objections to the magistrate’s

October 26, 2010 decision. Defendant-appellee/cross-appellant is Kenneth D. Thomas

(“Husband”).

STATEMENT OF THE CASE AND FACTS

{¶2} Husband and Wife were married on January 29, 1983. Three children

were born as issue of said union. Two of the children were emancipated, and the third

was a minor at the time of the divorce. Wife filed a Complaint for Divorce on March 9,

2009. Husband filed his Answer and Counterclaim on March 30, 2009. The trial court

issued temporary orders on April 27, 2009, ordering Husband to pay $11,500.00/month

in spousal support and $641.33/month in child support for the minor child.

{¶3} Wife filed a motion for contempt on October 6, 2009, requesting the trial

court order Husband to appear and show cause why he should not be held in contempt

for failing to comply with the temporary orders. The magistrate issued an Order/Agreed

Judgment Entry, designating Wife as the residential parent of the minor daughter.

Husband received standard parenting time.

{¶4} The trial court ordered the parties to attend mediation. As a result of the

mediation, the parties reached a number of agreements regarding various assets and

issues. The parties agreed the marital home was 100% marital property, and Husband

owned a 1% interest in Thomas 5 Ltd. with a current value of $90,000 - $60,000 of

which was separate property and $30,000 which was marital property. The parties also
Delaware County, Case No. 11CAF090079 3

reached agreements regarding Husband’s 401K plan; health insurance for the minor

child; the home appraisal; vehicles; life insurance policies; household goods; and, with

two exceptions, watches and jewelry.

{¶5} The final hearing commenced on July 19, 2010, and was heard over the

course of five days. On the first day of the final hearing, the parties submitted a joint

pre-trial statement and stipulations.

{¶6} The following evidence was introduced at trial. As to the health of each

party, the evidence established Wife (DOB 10/18/57) was in good health, but Husband

(DOB 10/6/56) had a history of heart problems, and underwent quintuple bypass

surgery in December, 2009. In addition, Husband struggled with substance abuse

issues, and had been admitted into in-patient treatment programs on several occasions

during the course of the marriage.

{¶7} With respect to the parties’ employment histories, the evidence revealed

Wife had been a stay-at-home mother for 23 years. Wife recently completed all the

requirements and obtained her real estate license, and worked for Keller Williams. The

position required her to pay advertising expenses, lock box expenses, annual dues, and

continuing education expenses. At the time of the final hearing, Wife had a negative

income and no health insurance.

{¶8} Husband is the son of the late Dave Thomas, founder of Wendy’s

International, Inc., who died in January, 2002. Husband graduated from Eastland

Vocational School in Columbus, Ohio, and successfully completed the management

training program at Wendy’s. Over the course of the marriage, Husband held a number

of different positions, and engaged in a variety of business dealings. Husband could
Delaware County, Case No. 11CAF090079 4

best be described as a venture capitalist and real estate developer. Husband’s last full-

time job was that of President of Thomas 5 Ltd., of which he was a founder and a 1%

owner. Husband admitted he left the position after he was given the choice of resigning

or being fired due to his alcohol use.

{¶9} Wife presented evidence which established Husband’s average total

income was $328,689.00 for the tax years 2006, and 2007. In addition, the evidence

revealed Husband’s total income was over $335,000.00 during the 2008 calendar year,

and was $117,921.00 in 2009. In the first six months of 2010, Husband had earned

total income of $94,000.00.

{¶10} Wife’s vocational expert, Dr. Growick, indicated Husband could earn

$161,000/year, the average income for top executives in Columbus, Ohio. However,

Dr. Growick agreed Husband was not the average person in the top executive market

due to his medical issues, alcohol dependency, and lack of college education. Dr.

Growick provided an analysis of Husband in a management level position, noting the

average income for such position would be between $75,000 - $80,000/year. Dr.

Growick acknowledged potential conflicts of interest if Husband accepted a position with

a competing chain restaurant.

{¶11} Husband offered the testimony of Tracy Kaufman, CPA who handled the

tax work of Thomas 5 Ltd. Kaufman provided a summary of Husband’s total annual

earnings from all sources as reflected in his 2002-2008 tax returns. Husband’s average

annual earnings during that time period were $188,027. Of that amount, Kaufman

attributed $63,175 to business income. Sometime in 2009, after the alternate valuation

date, Husband received his 2008 bonus from Thomas 5 Ltd., in the amount of $50,000.
Delaware County, Case No. 11CAF090079 5

{¶12} Husband is a one fifth contingent beneficiary of the R. David Thomas

Trust, a one fifth beneficiary of the Loraine Thomas Trust, and a one-fifth beneficiary of

the Thomas 5 Trust. Each year, Husband received from his mother $12,000.00 for

Christmas, and $5,000.00 for his birthday.

{¶13} Husband admitted to having an affair with Tonya Boll. The affair began

shortly after Husband met Boll in January, 2007. Boll was laid off from her job

sometime in March, 2009. Since that time, Boll had been financially dependent upon

Husband. In addition to financially assisting Boll, Husband purchased lavish gifts for

Boll, took her and her family on expensive vacations, and spent significant sums of

money on her and her children.

{¶14} The parties stipulated Wife owned a Rolex Presidential Watch, and such

was Wife’s separate property. Husband testified he needed money so he gave 5 or 6

watches, including the Rolex, to Boll and asked her to sell them. Husband stated he

believed Boll had given the Rolex as well as the other items to a watch collector, who

had taken the items to a show in North Carolina where the Rolex was ultimately sold.

Husband was not present when the Rolex was sold and had no direct knowledge as to

how much Boll received for it. Husband indicated Boll subsequently gave him

$5,000.00 in cash, and returned two or three of the watches. Husband believed the

$5,000.00 was the amount for which the Rolex was sold. Wife’s documentary and

opinion testimony valued the Rolex at $27,350.00.

{¶15} The magistrate issued a Decision on October 26, 2010, recommending

the parties be granted a divorce on the ground of incompatibility. The magistrate

ordered the marital residence sold, made findings and orders with respect to the
Delaware County, Case No. 11CAF090079 6

classification, division and valuation of the parties’ assets and liabilities, and calculated

child support and spousal support. The magistrate imputed minimum wage income to

Wife in the amount of $15,080, and imputed income to Husband in the amount of

$63,175. The magistrate denied Wife’s request for attorney fees.

{¶16} Husband and Wife filed objections to the magistrate’s decision. After a

transcript of the proceedings was filed, the parties filed supplemental objections as well

as memoranda in opposition.

{¶17} Via Decree of Divorce filed August 9, 2011, the trial court sustained in part

Wife’s objection to the magistrate’s decision as to the duration of spousal support;

overruled in part Wife’s remaining objections; and overruled Husband’s objections.

{¶18} It is from this entry Wife appeals, raising the following assignments of

error:

{¶19} “I. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION BY FAILING TO DIVIDE THE PARTIES’ ASSETS

AND LIABILITIES IN AN EQUITABLE FASHION AND BY FAILING TO PROPERLY

IDENTIFY SEPARATEA ND [SIC] MARTIAL PROPERTY.

{¶20} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT AND ABUSED ITS DISCRETION BY ESTABLISHING SPOUSAL

SUPPORT WITHOUT FIRST CONSIDERING ALL THE FACTORS AS SET FORTH IN

3105.18 AND ALL MATTERS RELEVANT IN ESTABLISHING THE LENGTH AND

DURATION OF SPOUSAL SUPPORT IN THIS MATTER.

{¶21} “III. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION IN THE TRIAL COURT [SIC] BY DETERMINING
Delaware County, Case No. 11CAF090079 7

THAT THE APPELLEE HAD EARNING ABILITY OF $63,175 PER YEAR AND

ESTABLISHING SPOUSAL SUPPORT AND CHILD SUPPORT IN AMOUNTS AND

FOR PERIODS THAT IT ESTABLISHED IN THIS MATTER, BASED ON THAT

FINDING.

{¶22} “IV. THE COURT ERRED TO THE PREJUDICE OF APPELLANT AND

ABUSED ITS DISCRETION IN ITS FAILURE TO AWARD ATTORNEY FEES TO THE

APPELLANT AND AGAINST THE APPELLEE.

{¶23} “V. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION IN FAILING TO ADDRESS THE FINANCIAL

MISCONDUCT OF THE APPELLEE[.]

{¶24} “VI. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION IN FAILING TO ADDRESS THE DISSIPATION OF

ASSETS BY THE APPELLEE.

{¶25} “VII. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION IN DISALLOWING THE TESTIMONY OF WILLIAM

DITTY.”

{¶26} Husband cross-appeals the same entry, asserting as error:

{¶27} “I. IT IS AN ABUSE OF DISCRETION AND ERROR FOR THE TRIAL

COURT TO COMMIT A SIGNIFICANT MATHMATICAL MISCALCULATION IN AN

ATTEMPTED EQUAL DISTRIBUTION OF MARITAL PROPERTY TO THE

DETRIMENT OF DEFENDANT-APPELLEE/CROSS APPELLANT.

{¶28} “II. IN THE ABSENCE OF PROOF BY CLEAR AND CONVINICING [SIC]

EVIDENCE OF A COMPLETED GIFT, IT IS AN ABUSE OF DISCRETION AND
Delaware County, Case No. 11CAF090079 8

ERROR FOR THE TRIAL COURT TO AWARD DEFENDANT-APPELLEE/CROSS

APPELLANT’S SEPARATE PROPERTY DIAMOND TO PLAINTIFF-

APPELLANT/CROSS APPELLEE.”

I

{¶29} In her first assignment of error, Wife contends the trial court erred and

abused its discretion by failing to equitably divide the parties’ assets and liabilities, and

by failing to properly identify separate and marital property. Specifically, Wife takes

issue with the trial court’s classification of her Rolex Presidential watch as marital

property subject to division; the trial court’s determination Husband’s 2008 Thomas 5

Ltd. bonus was Husband’s separate property; the trial court’s classification of the Baird

and Deere Harvester accounts as marital property and division thereof; the trial court’s

imposing upon her one-half of the tax liability arising out of Husband’s sale of

$169,142.00 worth of stock; and the trial court’s failure to order Husband to return a toy

truck given to Wife by her father as such was Wife’s separate property .

{¶30} A domestic court has broad discretion to make divisions of property.

Middendorf v. Middendorf (1998), 82 Ohio St.3d 397, 401, 696 N.E.2d 575, citing Berish

v. Berish (1982), 69 Ohio St.2d 318, 23 O.O.3d 296, 432 N.E.2d 183. In divorce

proceedings, the trial court must classify property as marital or separate property,

determine the value of the property, and, thereupon, divide the marital and separate

property equitably between the spouses. R.C. 3105.171(B); Roberts v. Roberts, 10th

Dist. No. 08AP-27, 2008-Ohio-6121, 2008 WL 5049808, ¶ 16.

{¶31} We review a trial court's classification of property as marital or separate

under a manifest weight of the evidence standard and will affirm if the classification is
Delaware County, Case No. 11CAF090079 9

supported by some competent, credible evidence. Taub v. Taub, 10th Dist. No. 08AP-

750, 2009-Ohio-2762, 2009 WL 1653823, ¶ 15. Valuing property involves factual

inquiries and also requires an appellate court to apply a manifest weight of evidence

standard of review. Wright v. Wright (Nov. 10, 1994), Hocking App. No. 94CA02. An

appellate court will not reverse a trial court's valuation if it is supported by some

competent, credible evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77,

461 N.E.2d 1273.

{¶32} We review a trial court's division of marital property by determining, under

the totality of circumstances, whether the trial court abused its discretion. Holcomb v.

Holcomb (1989), 44 Ohio St.3d 128, 131. The term “abuse of discretion” connotes

more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.

{¶33} The first ground upon which Wife asserts error in the division of the marital

assets and liabilities is the trial court’s finding the Rolex Presidential watch was marital

property and determining it was worth $5,000.00, the amount Husband’s paramour gave

Husband after she sold the watch. Wife maintains the Rolex, a gift from Husband, was

her separate property and worth $27,350.00.

{¶34} The parties stipulated the Rolex watch was Wife’s separate property.

Husband concedes this fact in his Brief to this Court. Wife testified the current fair

market value of the timepiece was $27,350.00. In support of this figure, Wife submitted

the Declarations page from the parties’ homeowner’s insurance policy which shows the

Rolex was insured in the amount of $27,350.00. Wife also presented a 2008 appraisal
Delaware County, Case No. 11CAF090079 10

performed by the Diamond Cellar, which gave a total approximate retail value excluding

tax in the same amount. Husband testified the fair market value of the watch was

$5,000.00 as such was the amount the market bore at the time of the sale.

{¶35} We find the trial court’s classification of the Rolex watch as marital

property was against the manifest weight of the evidence. We also find the trial court’s

valuation of the watch at $5,000.00 was against the manifest weight of the evidence.

Wife presented competent, credible evidence the Rolex was worth $27,350.00.

Husband did not have firsthand knowledge of the sale of the timepiece. Husband

merely testified Boll gave him $5,000.00 following the sale. We do not believe

Husband’s testimony alone rises to the level of competent, credible evidence from

which the trial court could conclude the value of the Rolex to be only $5,000.00. We

sustain this portion of the assignment of error and remand to the trial court to issue the

appropriate order.

{¶36} Next, Wife challenges the trial court’s finding Husband’s 2008 Thomas 5

Ltd. bonus, which he received in 2009, after the alternate valuation date, was

Husband’s separate property. Bonuses paid or earned during the course of a marriage

are martial assets. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 96-97.

{¶37} We find the trial court’s classification of Husband’s 2008 Thomas 5 Ltd.

bonus as his separate property was against the manifest weight of the evidence. In her

brief to this Court, Wife states she “should have received a one-half interest in the

marital portion of the bonus ($8,332.00).” Appellant’s Brief at 14. We note Husband

does not contest the sharing of said bonus. Accordingly, we sustain Wife’s assignment

of error with respect to the bonus. We remand the matter to the trial court to issue an
Delaware County, Case No. 11CAF090079 11

order awarding Wife one-half of the marital portion of the bonus. Based upon the

foregoing, this portion of Wife’s first assignment of error is sustained.

{¶38} Additionally, Wife takes issue with the trial court’s finding the Baird and

Deere Harvester investment accounts were marital property and divided the same

equally between the parties. Wife asserts the accounts were her separate property.

{¶39} Separate property includes any real or personal property or interest in

property that was acquired by one spouse prior to the date of the marriage. R.C.

3105.171(A)(6)(a)(ii). The commingling of separate property with other property of any

type does not destroy its identity as separate, except when the separate property is not

traceable. R.C. 3105.171(A)(6)(b). The party seeking to establish an asset as separate

property has the burden of proof, by a preponderance of the evidence, to trace the

asset to separate property. Hildebrand v. Hildebrand, 5th Dist. No. 954, 2003-Ohio-3654.

{¶40} Wife testified she received both accounts as part of her inheritance

following her father’s death and had invested additional monies from gifts and other

sources into these accounts over the years. According to Wife, marital funds were not

deposited into these accounts. Wife acknowledged she did not have documentary

evidence to support her position, but provided an oral tracing of the funds. We find

without documentary evidence to support Wife’s position, the trial court was free to

reject her self-serving testimony. See Peck v. Peck, 96 Ohio App.3d 731, 734-735

(1994). Accordingly, we find the trial court’s classification of the Baird and Deere

Harvester investment accounts as marital property was not against the manifest weight

of the evidence. This portion of Wife’s first assignment of error is overruled.
Delaware County, Case No. 11CAF090079 12

{¶41} Further, Wife contests the trial court’s holding her responsible for one-half

of the 2008 tax liability Husband created. An appellate court will not reverse a decision

of a lower court in matters involving distribution of property and payment of debts

absent an abuse of that discretion. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355.

{¶42} The trial court found the income generated, which resulted in the tax

liability, was produced in 2008, during the marriage. The trial court further found Wife

received the benefit of the income generated in 2008; therefore, should share in any

resulting liabilities. We find the trial court did not abuse its discretion in reaching this

determination. This portion of Wife’s first assignment of error is overruled.

{¶43} Lastly, Wife argues the trial court should have ordered Husband to return

the toy truck given to Wife by her father which Husband removed when he left the

marital residence. Husband acknowledges he removed the toy truck, but submits such

was done inadvertently, and he has since returned the item to Wife. Wife’s assignment

of error with respect to the toy truck is sustained.

{¶44} Wife’s first assignment of error is sustained in part, overruled in part, and

remanded in part for further proceedings in accordance with this Opinion and the law on

the issue of the classification and value of the Rolex, the bonus, and the toy truck.

II, III

{¶45} Wife’s second and third assignments of error are interrelated; therefore,

we shall address them together. In her second assignment of error, Wife maintains the

trial court erred and abused its discretion in failing to consider all of the factors set forth

in R.C. 3105.18 when establishing the length and duration of the spousal support order.

In her third assignment of error, Wife contends the trial court erred and abused its
Delaware County, Case No. 11CAF090079 13

discretion in setting Husband’s earning ability as $63,175/year, and utilizing that figure

in calculating Husband’s spousal and child support obligations.

{¶46} Pursuant to R.C. 3105.18(B), a trial court may award reasonable spousal

support to either party upon request and after the court determines the division or

disbursement of property under R.C. 3105.171.

{¶47} In determining whether spousal support is appropriate and reasonable,

and in determining the nature, amount, terms of payment, and duration of spousal

support, R.C. 3105.18(C)(1) directs the trial court to consider all 14 factors set forth

therein: the income of the parties; their relative earning abilities; their ages and physical

conditions; the retirement benefits of the parties; the duration of the marriage; the

standard of living established during the marriage; the relative extent of education of the

parties; relative assets and liabilities; the contribution of each party to the education,

training, or earning ability of the other party; the time and expense necessary for the

spouse seeking support to acquire education, training, or job experience so that they

may obtain appropriate employment; the tax consequences of an award of spousal

support; the lost income production capacity of either party that resulted from marital

responsibilities; and any other factor that the court finds to be relevant.

{¶48} As an initial matter, we find the trial court's decision includes sufficient

information regarding the factors to enable us to assess whether the award is fair,

equitable, and in accordance with the law. We note an award of spousal support will be

reversed on appeal only if an abuse of discretion is shown. Bechtol v. Bechtol (1990),

49 Ohio St.3d 21, 24, 550 N.E.2d 178. Upon review of the decision, we find the award

was not fair, equitable, or in accordance with the law.
Delaware County, Case No. 11CAF090079 14

{¶49} The magistrate ordered Husband to pay spousal support in the amount of

$1,000/month for a period of 48 months, and child support in the amount of

$634.49/month. The trial court sustained Wife’s objection to the duration of the spousal

support order and increased Husband’s obligation to 60 months.

{¶50} The record demonstrates the parties enjoyed a luxurious standard of living

during the marriage due, in large part, to the mentoring and success of Husband's

father. The parties owned a large custom-built home and were members of three private

clubs. They owned expensive jewelry and watches. The parties and their children drove

luxury motor vehicles. Wife had the primary responsibility of raising the three children

and maintaining the household. Wife did not pursue or develop a career outside the

home at any point during the marriage. Husband’s father passed away in January,

2002. Husband inherited over two million dollars from his father’s estate. The parties

spent virtually every penny of the inheritance between 2002, and 2008. Husband

voluntarily left his position with Thomas 5 Ltd. because of his substance abuse.

{¶51} Under the totality of the facts and circumstances in this case, we find the

trial court’s spousal support award of $1,000/month for only 60 months was

unreasonable. The trial court used $63,175.00 as Husband’s annual income for spousal

support purposes. This figure was calculated by averaging Husband’s business income

for a period of seven (7) years, specifically 2002-2008. Several of the income figures

from the earlier years, 2002 and 2003, were uncharacteristically low, and we find the

trial court erred in including these figures in its calculations as it resulted in Husband’s

income being undervalued. Upon remand, the trial court should recalculate Husband’s

annual income by averaging his business income for the three (3) most recent years
Delaware County, Case No. 11CAF090079 15

available.1 The average of Husband’s business income, using the figures Kaufman

extrapolated from Husband’s 2006, 2007, and 2008 Tax Returns, is $78,368.00. This

figure corresponds to the $75,000 - $80,000/year annual income Dr. Growick testified

Husband could earn in a management level position.

{¶52} We also find the duration of the spousal support order to be unreasonable.

The parties were married over 27 years at the time of the final hearing. Wife was

returning to the workforce for the first time in approximately 25 years. She was pursuing

a totally new career. Although in good health, Wife was over 50 years old at the time of

the divorce.

{¶53} Wife’s second and third assignments of error are sustained.

IV

{¶54} In her fourth assignment of error, Wife asserts the trial court erred and

abused its discretion in denying her request for attorney fees.

{¶55} R.C. 3105.73(A) governs the award of attorney fees and litigation

expenses in domestic relations cases and provides: “In an action for divorce * * * or an

appeal of that action, a court may award all or part of the reasonable attorney's fees and

litigation expenses to either party if the court finds the award equitable. In determining

whether an award is equitable, the court may consider the parties' marital assets and

income, any award of temporary spousal support, the conduct of the parties, and any

other relevant factors the court deems appropriate.”

1
Pursuant to R.C. 3119.05(H), the trial court, “when appropriate,” may average the
obligor's income over a reasonable period of years in order to compute “gross income”
for a child support order. Although our research has not uncovered any analogous
statutory language dealing with “income averaging” as it relates to spousal support
awards, we find such would be appropriate in the instant action.
Delaware County, Case No. 11CAF090079 16

{¶56} The decision to award attorney fees is within the sound discretion of the

trial court. Howell v. Howell, 167 Ohio App.3d 431, 2006-Ohio-3038, 855 N.E.2d 533.

{¶57} Wife contends the significant expenses she incurred were directly related

to Husband’s actions, which “were a clear attempt to spend Wife into submission.”

Husband counters Wife “vigorously contested every issue from the commencement of

this matter to the trial.” The trial court decided not to award attorney fees to Wife due to

the substantial assets she would be receiving upon the sale of the marital residence as

well as the division of the marital assets.

{¶58} Upon review of the record, we find the trial court did not abuse its

discretion in denying Wife’s request for attorney fees.

{¶59} Wife’s fourth assignment of error is overruled.

V, VI

{¶60} Because Wife’s fifth and sixth assignments of error involve related issues,

we shall address said assignments of error together. In her fifth assignment of error,

Wife argues the trial court erred and abused its discretion in failing to address

Husband’s financial misconduct. In her sixth assignment of error, Wife submits the trial

court erred and abused its discretion in failing to address Husband’s dissipation of

assets.

{¶61} R.C. 3105.171(E)(3) provides: “If a spouse has engaged in financial

misconduct, including, but not limited to, the dissipation, destruction, concealment, or

fraudulent disposition of assets, the court may compensate the offended spouse with a

distributive award or with a greater award of marital property.”
Delaware County, Case No. 11CAF090079 17

{¶62} As the inclusion of the term “may” in R.C. 3105.171(E)(3) indicates, the

decision regarding whether to compensate a party for the financial misconduct of the

opposing party is discretionary with the trial court. Leister v. Leister (Oct. 23, 1998),

Delaware App. No. 97CA–F–07027, unreported. Therefore, a trial court's decision on

this issue will not be reversed on appeal absent a showing of an abuse of discretion.

Blakemore, supra.

{¶63} Financial misconduct requires more than just dishonest behavior, it

requires a wrongdoing that interferes with a spouse's property rights and results in profit

to the wrongdoer from the alleged misconduct or stems from an intentional act meant to

defeat the other spouse's distribution of assets. Jacobs v. Jacobs, 4th Dist. No.

02CA2846, 2003-Ohio-3466; Eggeman v. Eggeman, 3d Dist. No. 2-04-06, 2004-Ohio

6050, at ¶ 24. To find financial misconduct, a court must look to the reasons behind the

questioned activity or the results of the activity and determine whether the wrongdoer

profited from the activity or intentionally dissipated, destroyed, concealed, or

fraudulently disposed of the other spouse's assets.

{¶64} After reviewing the entire record, we find the evidence before this Court

does not support a finding of financial misconduct or dissipation of assets by Husband.

Husband acknowledged he transferred funds to a third party, but indicated the funds

were from his inheritance; therefore, his separate property. Husband’s gifting of his

separate property did not interfere with or affect any funds Wife received during the

marriage. Accordingly, we find the trial court did not abuse its discretion in failing to

compensate Wife for Husband’s alleged financial misconduct and dissipation of assets.

{¶65} Wife’s fifth and sixth assignments of error are overruled.
Delaware County, Case No. 11CAF090079 18

VII

{¶66} In her final assignment of error, Wife submits the trial court erred and

abused its discretion in disallowing, during redirect, the testimony of Wife’s expert,

William Ditty, CPA, relative to his fees. We disagree.

{¶67} As a general rule, the scope of redirect examination is limited to matters

inquired into by the adverse party on cross-examination. State v. Wilson (1972), 30

Ohio St.2d 199, 204, 283 N.E.2d 632. “The control of redirect examination is committed

to the discretion of the trial judge and a reversal upon that ground can be predicated

upon nothing less than a clear abuse thereof.” Id.

{¶68} During his direct examination of William Ditty, Douglas Dougherty, counsel

for Wife, failed to ask the witness about his fees. Attorney Dougherty attempted to

introduce the issue on re-direct, however, the trial court disallowed the testimony,

sustaining Husband’s objection thereto. Attorney Dougherty proffered the testimony

and relevant documents, but the trial court would not permit him to reopen his case on

that limited issue. Attorney Dougherty subsequently moved the trial court to reconsider

its ruling, citing, inter alia, Evid. R. 611(A) and (B) and supporting case law.

{¶69} Because the scope of Husband’s cross-examination of Ditty did not

include testimony relative to the fees Ditty charged for his services, we find the trial

court did not abuse its discretion by restricting the scope of redirect examination. State

v. Faulkner (1978), 56 Ohio St.2d 42, 46, 381 N.E.2d 934.

{¶70} Wife’s seventh assignment of error is overruled.
Delaware County, Case No. 11CAF090079 19

CROSS-APPEAL

I

{¶71} In his first cross-assignment of error, Husband contends the trial court

abused its discretion and erred by committing a significant mathematical miscalculation

in its attempt to equalize the distribution of marital property.

{¶72} In reviewing an order on property division, this Court will not disturb the

trial court's decision absent a showing of an abuse of discretion. Martin v. Martin (1985),

18 Ohio St.3d 292, 480 N.E.2d 1112.

{¶73} Husband submits the trial court incorrectly assumed he was in possession

of some portion of the funds in Wife’s investment accounts and annuity, which he claims

he was not. Husband explains Wife is in possession of marital assets totaling

$543,511.39, while he is in possession of only $67,857.50 worth of marital assets. The

difference between those figures, $475,653.89, divided in half, results in each party

receiving $237,826.94 worth of property. Husband’s portion is reduced by $124,003.80,

the amount he owes Wife pursuant to the temporary orders, leaving $113,823.14 owed

to him from Wife.

{¶74} Upon review, we find the trial court did not abuse its discretion in

fashioning the distribution of marital assets as it did. Wife was to receive $289,437.07

worth of property, while Husband was to receive assets totaling $219,086.01. The trial

court ordered Wife to pay Husband $70,351.06 to equalize the division. We find the fact

Wife was in possession of more property does not equate to a finding the distribution

was inequitable or based upon incorrect mathematical calculations.

{¶75} Husband’s first cross-assignment of error is overruled.
Delaware County, Case No. 11CAF090079 20

CROSS-APPEAL

II

{¶76} In his second cross-assignment of error, Husband asserts the trial court

erred and abused its discretion in awarding Wife one-half of the value of the five carat

diamond Husband received as a gift from his mother in 2002, as such is Husband’s

separate property.

{¶77} As set forth supra, we review a trial court's classification of property as

marital or separate under a manifest weight of the evidence standard and will affirm if

the classification is supported by some competent, credible evidence. Taub, supra.

{¶78} At Christmas, 2002, Husband’s mother presented Husband and each of

his four sisters with five carat diamonds. Wife does not contest the diamond was

originally a gift to Husband. However, Wife testified Husband gave the diamond to her

as a gift and the parties went to a jewelry store and had the stone mounted into a ring.

The magistrate found Wife did not meet her burden of proof to establish the diamond

was her separate property. The magistrate ordered the diamond be sold with each

party receiving one half of the net proceeds.

{¶79} Husband did not object to the magistrate’s order relative to the diamond.

{¶80} Civ.R. 53(D)(3)(b)(iv) provides:

{¶81} “Except for a claim of plain error, a party shall not assign as error on

appeal the court's adoption of any factual finding or legal conclusion, whether or not

specifically designated as a finding of fact or conclusion of law under Civ.R.

53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by

Civ.R. 53(D)(3)(b).”
Delaware County, Case No. 11CAF090079 21

{¶82} Because Husband failed to object to the magistrate's decision with regard

to the classification of the diamond, we find this argument to be waived.

{¶83} Husband’s second cross-assignment of error is overruled.

{¶84} The judgment of the Delaware County Court of Common Pleas, Domestic

Relations Division, is affirmed in part; reversed in part; and remanded for further

proceedings consistent with the law and this Opinion.

By: Hoffman, J.

Delaney, P.J. and

Edwards, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY

s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Delaware County, Case No. 11CAF090079 22

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

KATHLEEN A. THOMAS :
:
Plaintiff-Appellant/Cross-Appellee :
:
-vs- : JUDGMENT ENTRY
:
KENNETH D. THOMAS, ET AL. :
:
Defendant-Appellee/Cross-Appellant : Case No. 11CAF090079

For the reasons stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas, Domestic Relations Division, is affirmed in

part; reversed in part; and remanded for further proceedings consistent with the law and

our Opinion. Costs assessed equally.

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY

s/ Julie A. Edwards ___________________
HON. JULIE A. EDWARDS