Gatchel v. Gatchel

[Cite as Gatchel v. Gatchel, 2013-Ohio-5289.]

STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

LISA GATCHEL, )
) CASE NO. 12 CO 44
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
DAVID GATCHEL, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Domestic Relations Division, Case No.
11DR224.

JUDGMENT: Affirmed in part; Reversed in Part;
Remanded.

APPEARANCES:
For Plaintiff-Appellee: Attorney James Vivo
3736 Boardman-Canfield Road
Canfield, Ohio 44406

For Defendant-Appellant: Attorney Tracey Laslo
325 East Main Street
Alliance, Ohio 44601

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated: November 27, 2013
[Cite as Gatchel v. Gatchel, 2013-Ohio-5289.]
VUKOVICH, J.

{¶1} Defendant-appellant David Gatchel appeals the decision of the
Columbiana County Common Pleas Court, Domestic Relations Division. Appellant
contends that the court abused its discretion in ordering him to pay spousal support
to plaintiff-appellee Lisa Gatchel after her child support obligation to him ended,
urging that the court did not determine if she had the ability to be self-supporting. He
also alleges that the court abused its discretion in finding the entire equity in the
residence to be marital property. Lastly, appellant states that it was unreasonable to
order the parties to sell all of their personalty at auction if they could not agree on its
division by a certain date.
{¶2} For the following reasons, we hereby affirm the support order and the
division of the marital residence. However, the auction order is reversed, and the
case is remanded for actual distribution of the personalty.
STATEMENT OF THE CASE
{¶3} The parties were married on September 30, 1989. Their two children
were born in October of 1994 and March of 1997. The wife filed a complaint for
divorce in April of 2011. They both lived in the marital residence until the end of that
year at which time the wife moved into an apartment.
{¶4} The magistrate held the divorce trial on March 8 and May 3, 2012. The
husband asked for custody and child support. The wife asked for spousal support.
The parties agreed that the husband could remain in the marital residence by paying
the wife for her share of the marital equity. Each party claimed that portions of the
equity could be traced to separate property contributions. The parties could not
reach an agreement on certain items of personalty and testified as to those items in
dispute.
{¶5} The magistrate released a decision on May 24, 2012. The magistrate
valued the house at $165,000 as the husband urged. They had a line of credit for
$24,688.90 and no mortgage. The magistrate divided the equity evenly. The
magistrate then noted that the furniture, appliances, and household goods were not
appraised and that the parties did not agree on their division. The magistrate gave
 -2-

the parties until August 1, 2012 to reach an agreement regarding division of these
items in order to avoid sale at public auction with an equal division of the net
proceeds.
{¶6} The magistrate gave custody of the two children to the husband. An
attached child support worksheet provided that the wife was obliged to pay $377.62
per month. The magistrate ruled that she was entitled to spousal support but she
would not initially receive spousal support as an offset for the child support she owed.
The husband was ordered to start paying spousal support in the amount of $300 per
month for thirty-six months after the youngest child became emancipated.
Jurisdiction to modify the amount or duration of spousal support was retained.
{¶7} Both parties filed objections. On October 1, 2012, the trial court
overruled all objections and upheld the magistrate’s decision. The court extended
the date for an agreement on personalty until November 16, 2012, since the date set
by the magistrate had passed during the objection process. The husband filed a
timely notice of appeal and obtained a stay pending appeal. The husband sets forth
three assignments of error. The wife has failed to file an appellate brief.
ASSIGNMENT OF ERROR NUMBER ONE
{¶8} Appellant’s first assignment of error alleges:
{¶9} “The trial court’s decision to place the entire financial burden of raising
the parties’ children on the Defendant-Appellant and order him to pay spousal
support to the Plaintiff-Appellee without even attempting to determine whether she
had the ability to be self-supporting was unreasonable, arbitrary, and
unconscionable, and must therefore be reversed.”
{¶10} Appellant generally urges that the total spousal support order was
unreasonable, arbitrary, and unconscionable. He also contends that the court was
required but failed to evaluate the wife’s resources, ability, and potential to be self-
supporting, citing the portion of the Fourth District Yazdani-Isfehani case which dealt
with the test for a spousal support order that had no termination date. See Yazdani-
Isfehani v. Yazdani-Isfehani, 4th Dist. No. 08CA3, 2008-Ohio-4662.
 -3-

{¶11} In order to ascertain the reasonableness of the order, we must
deconstruct the actual amounts ordered. As aforementioned, the husband’s spousal
support obligation was wholly offset by the wife’s child support obligation until the
youngest child was emancipated. So, the spousal support order was essentially
$377.62 per month1 from May 25, 2012 (the effective date of the support order) until
the graduation of the oldest child (who turned 18 in October of 2012). Upon
emancipation of the oldest child, the wife would only have the obligation to pay for
one child under the child support worksheet. Thus, the spousal support award was
effectively cut in half to $188.81 per month upon the oldest child’s emancipation and
terminate when their youngest child is emancipated. The youngest child will turn 18
in March of 2015. When that child graduates, the spousal support award will then
increase to $300 per month for 3 years.
{¶12} Pursuant to R.C. 3105.18(B), the court may award reasonable spousal
support. In determining whether spousal support is appropriate and reasonable, and
in determining the nature, amount, and terms of payment and the duration of spousal
support, the court shall consider all of the following factors: (a) income; (b) the
relative earning abilities; (c) the parties’ ages and physical, mental, and emotional
conditions; (d) the retirement benefits; (e) the duration of the marriage; (f) the extent
to which it would be inappropriate for custodian of a minor marital child to work
outside the home; (g) the standard of living established during the marriage; (h) the
parties’ relative educations; (i) the relative assets and liabilities, including any court-
ordered payments; (j) the contribution of each party to the education, training, or
earning ability 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 (if the education,
training, or job experience and employment is in fact sought); (l) the tax
consequences of spousal support; (m) the lost income production capacity that

1
Line 29 of the worksheet states that the mother’s final figure was $4,531.44 and that the
decree would show $385.17 (after poundage) if she were named the obligor. This comes to $377.62
per month that the husband would have received in child support before the offset.
 -4-

resulted from marital responsibilities; and (n) any other factor that the court expressly
finds to be relevant and equitable. R.C. 3105.18(C)(1).
{¶13} The trial court’s decision on the amount and duration of spousal support
cannot be reversed absent an abuse of discretion. Booth v. Booth (1989), 44 Ohio
St.3d 142, 144, 541 N.E.2d 1028. An abuse of discretion connotes more than an
error in judgment; it implies that the trial court's judgment is arbitrary, unreasonable,
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983). The appellate court must refrain from substituting its judgment for that
of the trial court on matters of spousal support. Id. Moreover, the appellate court
should not independently weigh the evidence in most domestic relations cases, and
instead should be guided by the presumption that the trial court's findings are correct.
Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
{¶14} The trial court must indicate the basis for an award of spousal support
in sufficient detail to enable a reviewing court to determine that the award is fair,
equitable, and in accordance with the law. Kaechele v. Kaechele, 35 Ohio St.3d 93,
96, 518 N.E.2d 1197 (1988). Still, the court need not expressly comment on each
factor or explain its rationale in minute detail. Miller v. Miller, 7th Dist. No. 08JE26,
2009-Ohio-3330, ¶ 142.
{¶15} The magistrate stated that spousal support was based primarily on the
following factors: the husband’s substantially greater income and earning ability than
the wife, the length of the marriage, and the tax consequences to the parties as seen
in an attached print-out showing how spousal support would affect the parties’ taxes.
See R.C. 3105.18(C)(1)(a) (income), (b) (relative earning abilities), (e) (duration of
marriage), and (l) (tax consequences). The trial court agreed that the evidence
supports the factors relied upon by the magistrate. The trial court noted that some of
the factors to be considered in awarding spousal support are the relative earning
abilities, the retirement benefits, the duration of the marriage, the standard of living
established during the marriage, and any other factor the court finds relevant.
{¶16} The court then stated there was a sizeable disparity in incomes. See
R.C. 3105.18(C)(1)(a) (income). Specifically, the husband’s income was $54,667,
 -5-

and the wife’s income was $31,575. The court explained that the wife testified that
she had little or no room for advancement at her place of employment, gets no
overtime, and has no specialized training or education. See R.C. 3105.19(C)(1)(b)
(relative earning abilities). We add that the husband has been at his employer for
many years and can work overtime.
{¶17} The trial court pointed out that the husband was the primary wage
earner throughout the marriage, a marriage of more than 22 years. See R.C.
3105.18(C)(1)(e) (duration of marriage), (n) (any other factor found relevant). The
court observed that the parties lived a relatively debt-free life with the only debt a line
of credit on the house for less than $25,000. See R.C. 3105.19(C)(1)(g) (standard of
living during marriage). We add that they lived in a three bedroom house which they
built in 1997 on more than five acres, where the husband will remain while the wife
has moved to an apartment with rent costing $530 per month.
{¶18} The court also noted that the husband’s retirement benefits were
greater than the wife’s. See R.C. 3105.18(C)(1)(d) (retirement benefits). The court
then expressly disagreed with the husband’s suggestion that spousal support is not
reasonable if the wife can be “self-supporting” and pointed out that his citation to
Yazdani-Isfehani was not on point to his argument.
{¶19} As to the other factors, evidence was not presented on the parties’ ages
or their physical, emotional, or mental conditions. See R.C. 3105.18(C)(1)(c). No
testimony was presented on either party’s contribution to the other’s education,
training, or earning ability or on new education or training being sought for either
spouse. See R.C. 3105.18(C)(1)(j)-(k). There was no testimony on the husband’s
education, and the wife stated that she has no special skills or training. See R.C.
3105.18(C)(1)(h).
{¶20} There was no claim of lost income production capacity that resulted
from marital responsibilities. See R.C. 3105.18(C)(1)(m). The wife testified that she
was employed in a similar office position for the entire marriage and that she makes
$1 per hour less now that she has been reclassified as full-time in order to obtain
health insurance, which she previously did not need as she was covered by the
 -6-

husband’s plan. Finally, it seems the parties’ relative assets would be similar after
the divorce. The husband would have more liabilities on paper due to the line of
credit and probably a new mortgage in order pay the wife for her equity in the
residence, but he would also own a house. See R.C. 3105.18(C)(1)(i).
{¶21} Considering all of the relevant factors, we cannot conclude that the trial
court’s spousal support order was unreasonable, unconscionable, or arbitrary. Need
or the ability to be self-supporting is but one factor that the court may consider under
the catch-all provision. See R.C. 3105.18(C)(1)(n); Miller v. Miller, 7th Dist. No.
08JE26, 2009-Ohio-3330, ¶ 144. The court outlined the many factors that the court
found most important. As detailed above, the parties’ relative incomes, earning
abilities, work history, and advancement potentials, the tax consequences of the
spousal support, the parties’ prior standard of living, and the nearly 23 year marriage
with children were important to the court in determining that the award was
reasonable. The husband makes $21,000 more than the wife, and he has always
been the family’s primary wage earner.
{¶22} We conclude that the amount and duration of spousal support here do
not evince an abuse of discretion. Although different judges may have reached
different spousal support determinations from that of the trial court here and from
each other, we refuse to substitute our judgment for that of the trial court under the
circumstances of this case. See Blakemore, 5 Ohio St.3d at 21. This assignment of
error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{¶23} Appellant’s second assignment of error provides:
{¶24} “The trial court failed to consider the totality of the circumstances and
the numerous documents that Defendant-Appellant provided evidencing his interest
in the real estate. As such, the trial court’s unreasonable, arbitrary and
unconscionable decision regarding the equity in the marital residence must be
reversed.”
{¶25} A trial court is vested with broad discretion in dividing marital property.
Bisker v. Bisker, 69 Ohio St.3d 608, 609, 635 N.E.2d 308 (1994). The division of
 -7-

marital property shall be equal unless this would be inequitable. R.C.
3105.171(C)(1). Each spouse shall be considered to have contributed equally to the
production and acquisition of marital property. R.C. 3105.171(C)(2).
{¶26} In dividing marital property, the court shall consider all of the following
factors: (1) the duration of the marriage; (2) assets and liabilities; (3) the desirability
of awarding the family home to the spouse with custody; (4) the liquidity of the
property; (5) the economic desirability of retaining an asset intact; (6) the tax
consequences; (7) the costs of sale if necessary; (8) any division made in a
separation agreement; (9) retirement benefits; and (10) any other factor that the court
expressly finds to be relevant and equitable.
{¶27} Marital property can include all real property that currently is owned by
either or both of the spouses and that was acquired by either or both of the spouses
during the marriage. R.C. 3105.171(A)(3)(a)(i). Marital property can also include all
income and appreciation on separate property, due to the labor, monetary, or in-kind
contribution of either or both of the spouses that occurred during the marriage. R.C.
3105.171(A)(3)(a)(iii).
{¶28} However, marital property does not include separate property. R.C.
3105.171(A)(3)(a)(i), (b). Generally, the court should disburse a spouse’s separate
property to that spouse. R.C. 3105.171(D). There are various examples of separate
property. For instance, an inheritance of one spouse is separate property. R.C.
3105.171(A)(6)(a)(i). And, property acquired by one spouse prior to the date of the
marriage is separate property; as is passive income and appreciation acquired from
separate property. R.C. 310.1717(A)(6)(a)(ii)-(iii).
{¶29} Separate property also includes compensation to a spouse for the
spouse's personal injury, except for loss of marital earnings and compensation for
expenses paid from marital assets. R.C. 3105.171(A)(6)(a)(iv). Any gift 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 is separate property. R.C.
3105.171(A)(6)(a)(vii).
 -8-

{¶30} The holding of title to property by one spouse individually or co-
ownership by both spouses does not determine whether the property is marital
property or separate property. R.C. 3105.171(H). The commingling of separate
property with other property of any type does not destroy the identity of the separate
property as separate property, except when the separate property is not traceable.
R.C. 3105.171(A)(b)(6). The party seeking to have an asset classified as separate
property has the burden of proof by a preponderance of the evidence to trace the
asset to separate property. Lucas v. Lucas, 7th Dist. NO. 11NO382, 2011-Ohio-
6411, ¶ 10.
{¶31} Both parties asked to label some of the equity in the Leetonia residence
as separate property. The husband purchased a home in Lisbon in 1976. (May 3,
2012 Tr. 21). He provided the 1976 deed as an exhibit (which exhibit does not
include the purchase price). The parties married in 1989 and resided in that Lisbon
house. The husband provided a printout from the auditor’s website, which valued the
property at $38,070 in 1986 and $54,620 in 1998. The husband testified that the
Lisbon residence was sold in 1997 for $73,000 and provided that deed as an exhibit
(which exhibit also did not contain the sale price). (May 3, 2012 Tr. 23).
{¶32} The husband stated that he used $67,000 in sale proceeds to pay down
the bridge loan on the new house they were building in Leetonia. (May 3, 2012 Tr.
25). He provided a loan modification contract showing that the amount of the loan
was decreased by $67,000 due to a principal payment made shortly after the sale of
the Lisbon house. Thus, he asked that $67,000 in equity on the marital home be
classified as separate property. (Tr. 25).
{¶33} The wife testified that she invested $50,000 of her separate property
into the parties’ two residences. This was her net proceeds from a medical
malpractice lawsuit recovered in her name alone. She stated that she used over
$16,000 of the settlement proceeds to pay off the loan on the Lisbon residence,
which she disclosed that the husband had purchased for $22,000. (March 8, 2012
Tr. 38-39). She also testified that she used $25,000 to buy the land for their Leetonia
residence. (March 8, 2012 Tr. 40).
 -9-

{¶34} In addition, the wife produced receipts, which she testified were paid
out of her settlement proceeds in the following manner: $1,778 for waterproofing the
exterior foundation, $5,020 for the drive and electric, and $4,496 for excavation and
septic. (March 8, 2012 Tr. 41-42). The husband responded by stating that her
medical malpractice settlement was placed into the joint checking account like all of
their other money and the bills were all paid out of that account. (May 3, 2012 Tr. 45-
46).
{¶35} The magistrate found that neither party met their burden to prove their
separate property claims by a preponderance of the evidence. The trial court agreed
after an independent review of the record. The court noted that the pleadings do not
mention separate property claims and the financial affidavits did not fill in the section
for separate property which specified inheritance, gift, or premarital property. The
court pointed out that the parties commingled separate funds into a joint account.
The court concluded that accurate tracing was not possible and any separate
property was transmuted into marital property.
{¶36} The magistrate was in the best position to weigh the parties’ credibility.
The magistrate found that neither party proved their claim to entitlement to a separate
share of the marital residence. The documents submitted by the husband showed
sales and dates and some figures but did not provide the entire picture and do not
take into account the marital funds used as payments on the Lisbon house after
marriage and prior to its sale. He did not establish that the increased value of the
Lisbon house involved passive appreciation or premarital labor. Moreover, he claims
that the wife’s separate property became marital when she deposited it in the joint
checking account before paying for the residences, but provides no evidence that he
did not do the same thing with the $67,000 proceeds prior to paying on the bridge
loan.
{¶37} We need not substitute our judgment for that of the trier of fact on this
weight and credibility issue. See Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,
80, 10 OBR 408, 461 N.E.2d 1273 (1984) (fact-finder is best able to view the
 -10-

witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.)
{¶38} In fact, even if the husband proved entitlement to separate property
credit, then so did the wife. Under such circumstances, the trial court could have
alternatively and rationally concluded that the parties’ separate property claims
regarding the residences offset in any event. The wife received $50,000 in separate
property. The husband did not dispute this was originally separate or that it ended up
being used on the residences. His argument was more of a suggestion that her
money transmuted but his money did not.
{¶39} The husband wants credit for $67,000 that he states was the amount he
received from the sale of the Leetonia home which he used to pay down the loan for
the Lisbon home. His documentary evidence tends to support that this was where
$67,000 came from. However, merely because the Lisbon house was purchased
before marriage and was in solely his name is not dispositive of his entitlement to
credit for that entire amount.
{¶40} According to the wife, the husband purchased that house for $22,000,
and she eventually paid off his loan of $16,000 on the house. Thus, it could be
concluded that part of that $67,000 that the husband claims is his was partly derived
from the wife’s $16,000 payment to his loan. Moreover, they lived in the Lisbon
house as a married couple for over 7 years. The payments made during those years
can be considered as coming from marital income. And, as aforementioned, the
husband really did not attempt to establish that the increased value of the Lisbon
residence at the time of sale was solely due to passive appreciation or premarital
labor.
{¶41} Lastly, we note that appellant makes a contention regarding his proof
that he inherited $1,500 from his father in 1998. This inheritance is further discussed
in the next assignment where it belongs. The mismentioning of the inheritance under
this assignment of error involving real estate appears to be derived from a
misstatement in the magistrate’s decision during magistrate’s recounting of the
 -11-

husband’s testimony. However, appellant actually testified that he used his $1,500
inheritance to pay for a Craftsman tractor. (May 3, 2012 Tr. 26).
{¶42} For all of these reasons, this assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER THREE
{¶43} Appellant’s third and final assignment of error contends:
{¶44} “The trial court’s order regarding the division of personal property was
impermissibly vague, and would permit Plaintiff-Appellee to force the sale of all
property at issue merely by refusing to cooperate in dividing it. Therefore, the trial
court’s decision was unreasonable, arbitrary and unconscionable, and must be
reversed.”
{¶45} The magistrate’s order divided vehicles and bank accounts and stated
that each party shall retain their own clothing, jewelry and personal items. The order
then stated: “The Court has a dilemma with dividing all of the other items of furniture,
appliances and household goods and furnishings.” The magistrate noted that the
parties had not reached an agreement as to the division of these items and they were
not appraised. The magistrate recommended that if the parties could not reach an
agreement on these items by August 1, 2012, then the parties must immediately sign
an auction contract and divide the net proceeds equally.
{¶46} The husband objected to this order stating it was vague and lacking in
explanation as to how it would result in an equitable division. The husband urged
that the magistrate should have specifically divided the disputed property. He also
expressed that the order permitted the wife to force the sale of personalty merely by
refusing to cooperate in a division. The wife’s memorandum concurred with the
magistrate’s auction order.
{¶47} The trial court overruled the husband’s objection and modified the
agree-by date to November 16, 2012. The trial court stated that the Seventh District
has recognized the right of the domestic relations court to order an auction, citing our
Hiscox case and R.C. 3105.171(J)(2). The trial court then found that because there
were no valuations, an auction was reasonable, voicing that this seemed to be the
approach recommended in Hiscox.
 -12-

{¶48} The trial court concluded that if “the parties are unable to agree on a
division of the tangible property owned by them, it shall be sold at absolute public
auction” and “[e]xcept as otherwise ordered, all household goods, and tangible
personal property of every nature and description owned by the parties shall be sold
* * *.” The court allowed the parties to exempt any item from the auction by
submitting a written joint prepared judgment entry to the court.
{¶49} The first problem with the trial court’s order is that it refers to all
personalty owned by the parties. However, the parties were not disputing the division
of all personalty. They were fine with where some of the personalty was located.
There is no reason to order all property sold at auction when the testimony disputed
only a smattering of pieces.
{¶50} Moreover, the court cites our 2007 Hiscox case in support of its
decision to auction all personalty. However, Hiscox actually supports the husband’s
position here. In that case, the trial court ordered all household goods, personal
property, and vehicles of every nature and description to be sold at auction and
allowed the parties to exempt any item from the auction by submitting a written joint
prepared judgment entry. Hiscox v. Hiscox, 7th Dist. No. 06CO18, 2007-Ohio-1124,
¶ 54-55.
{¶51} We recognized that R.C. 3105.171(J)(2) provides a domestic relations
judge the authority to order marital property to be sold at auction if such would be
equitable. Id. at 59-60. This statute provides: “The court may issue any orders
under this section that it determines equitable, including * * * An order requiring the
sale or encumbrancing of any real or personal property, with the proceeds from the
sale and the funds from any loan secured by the encumbrance to be applied as
determined by the court.” R.C. 3105.171(J)(2).
{¶52} We warned that the court’s power to order a sale or an auction is not
absolute. Hiscox, 7th Dist. No. 06CO18 at ¶ 61. We noted that it has been held that
an auction should not normally be ordered where there is a reasonable chance of
fair, timely and voluntary sale. Id. We then pointed out that the function of the
 -13-

domestic relations courts is to resolve the parties’ disagreements over their assets in
a fair and equitable way at a difficult time in their lives. Id.
{¶53} This court disagreed with or distinguished cases from the Third and
Fifth Districts regarding ordered auctions. We noted that the Third District upheld an
order to sell at auction all personalty without explanation. Id. at ¶ 62, citing Noll v.
Veti, 3d Dist. No. 14-05-11, 2005-Ohio-5754.2 We then distinguished a Fifth District
case which upheld an order to sell all assets at auction (except for clothing and
personal effects). Id. at ¶ 63, citing Yerian v. Yerian, 5th Dist. No. 2001 CA00397,
2002-Ohio-3093. In affirming the auction order, the Fifth District focused on the
following facts: the appellant stopped working upon the filing of the divorce; the
appellant threatened to file bankruptcy and leave town; and the parties had a large
debt and a small amount of assets. Yerian, 5th Dist. No. 2001 CA00397 at ¶ 32-33
(expressing concern that the appellee would be forced to pay joint debts in the
absence of the auction order).
{¶54} As to the parties in Hiscox, this court found nothing in the record to
suggest that either party threatened to file bankruptcy or leave the other with joint
debts and noted that there was no finding regarding the amount of debt in relation to
the amount of assets. Hiscox, 7th Dist. No. 06CO18 at ¶ 64 (also noting that the trial
court failed to exempt personal effects from the auction). We pointed out that the
order put each party at the mercy of the other merely because they could not agree in
a divorce action. Id. at ¶ 65.
{¶55} We noted the negligible market value which would be collected at
auction and the fact that the parties would have to replace the items sold at a much
greater cost. Id. at ¶ 65-66 (forcing parties to refurbish their homes after shedding
their contested items for a pittance at auction does not fulfill the court’s function to
divide property fairly and equitably). We thus concluded that the auction order was

2
Notably, the Third District pointed out that the order was actually to obtain an appraisal of the
property or it would be sold at auction. Noll v. Veti, 3d Dist. No. 14-05-11, 2005-Ohio-5754 at ¶ 26.
And, the appellant in Noll had actually agreed to the order on the record. Id. at ¶ 27.
 -14-

an abuse of discretion. Id. at ¶ 67-69 (even more so regarding items of separate
property).
{¶56} Here, the wife testified that she was waiving the requirement that the
court determine the worth of the following items that remained at the marital
residence that she desired: (1) a full-size couch (to match the identical full-size
couch she already took); (2) the living room curtains (to match the couch); (3) a curio
cabinet (where she stored her porcelain bird collection before she moved her birds
out and where their son now stored his sports memorabilia); (4) a roll-top desk (which
is one of three desks retained by the husband and which is in the son’s bedroom);
and (5) the green Craftsman garden tractor. (Mar. 8, 2012 Tr. 21, 23-26).3
{¶57} The husband testified that he wished to be awarded certain items that
the wife took from the residence: (1) a different division of the Thomas Kinkade
pictures (he had four small, she had two large, and he wanted each to have two small
and one large); (2) approximately 15 pewter Christmas ornaments (from his place of
employment); (3) a video camera; and (4) a ceramic John Deere statue of a boy (that
the paternal grandmother bought for their son, who lived with the husband). (May 3,
2012 Tr. 31-32, 37).4
{¶58} As can be seen, there was a minimal number of items in dispute. The
order that all personalty would be sold merely because of the dispute over these few
items is unreasonable. Although the parties can agree to exclude items, this does
not acknowledge the prior agreement that occurred by implication (by failing to
contest during the trial and by only specifically contesting certain items that each
party had). As the husband fears, the wife can now refuse to agree on anything and
everything will be sold.
{¶59} We conclude that it was clearly unreasonable, arbitrary, and
unconscionable to fail to award to each party the personalty that each party

3
She also asked for the gas grill and the fish tank. However, the husband agreed from the
stand that the wife could have the fish tank and the gas grill. (May 3, 2012 Tr. 49).
4
There were originally some other items on his list, which he created in January of 2012 after
the wife retrieved some property. However, his testimony showed a decision to only seek the items for
which testimony was specifically provided. (May 3, 2012 Tr. 32, 37-38, 49).
 -15-

uncontestedly possessed. With the exception of the few disputed items listed above.
The parties either expressly or implicitly (by failing to present testimony) agreed on
the division of almost all of their belongings. The uncontested items must be
distributed accordingly on remand. This means (with the exception of the disputed
items listed above) each party will maintain what they possess (except the husband
will transfer wife the fish tank and the gas grill to wife as he agreed). We thus
reverse the order of auction.
{¶60} As we are reversing the entire auction order, the disputed items must
also be distributed. That is, in remanding for distribution of the uncontested items,
we have decided to include the few disputed items in the scope of our remand as well
because, under all of the circumstances existing in this case, we have concluded that
it was unreasonable to order an auction of any items.
{¶61} The asset-to-debt ratio here was the opposite as that existing in the
Yerian case. No one was threatening bankruptcy, and no one quit working; in fact,
the testimony suggested that both parties enjoyed job stability. The assets were
listed in the decree, and it was specifically noted that the parties’ lived a fairly debt-
free life. Selling the few items at auction for a minimal amount was unnecessary here
and gives rise to some unreasonable results.
{¶62} For instance, ordering the sale of a grandparent’s ceramic gift to a child
because the parties to a contested divorce cannot agree where it should be
displayed, does not appear to be a reasonable resolution under the facts of this case.
And, as to the green tractor, the husband testified that he purchased it with the
inheritance from his father and he wanted to keep it, noting that his son uses it for
spare parts. (Tr. 49, 57-58). He provided documentary evidence of the $1,500
inheritance from his father in 1998. The wife did not contradict the husband’s
testimony that he purchased the green tractor with his separate property inheritance
from his father.
{¶63} It is not the role of the appellate court to conduct an item by item review
of the property divided. Kachmar v. Kachmar, 7th Dist. No. 08MA90, 2010-Ohio-
1311, ¶ 69; Hiscox v. Hiscox, 7th Dist. No. 07CO7, 2008-Ohio-5209, ¶54-55 (the
 -16-

second appeal of the Hiscox case after our remand). Thus, we leave the division of
the items in dispute to the trial court on remand.
{¶64} In conclusion, it is the domestic relations court’s obligation to divide the
property fairly and equitably. Only certain items were placed in dispute at trial. The
parties set forth testimony describing the few contested items and why they believed
it was equitable for them to receive certain items. The lack of precise assigned
values for these items would not preclude division of the actual items as equal
division is not required and an equitable division is sufficient. There is a wide
spectrum of fairness considering the testimony presented on the few disputed items
and many reasonable distribution possibilities.
{¶65} Merely because the parties waive appraisal but cannot agree on a few
items, an auction, where those items will sell for a fraction of their worth, should not
be their punishment; rather, the result should typically be that the parties have
consented to leave distribution wholly to the trial court. Some reasonable division
would not have been burdensome to the court. This is the purpose of a divorce
court: to settle the property distribution because the parties cannot. This is not a
dissolution where it is required that the parties agree. Under all of the particular facts
and circumstances existing in this case, we find it unreasonable to order all
personalty (or even the few pieces of disputed personalty) sold at an auction.
{¶66} For the foregoing reasons, the judgment of the trial court is affirmed as
to spousal support and the division of the equity in the marital residence. The trial
court’s judgment is reversed as to the auction order and remanded for actual
distribution of personalty.

Donofrio, J., concurs.
Waite, J., concurs.