[Cite as Raykov v. Raykov, 2012-Ohio-2611.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
PAUL A. RAYKOV C.A. No. 26107
Appellee/Cross-Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NANCY E. RAYKOV COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant/Cross-Appellee CASE No. 2010-01-0077
DECISION AND JOURNAL ENTRY
Dated: June 13, 2012
WHITMORE, Presiding Judge.
{¶1} Appellant/Cross-Appellee, Nancy Raykov (“Wife”), appeals from the judgment of
the Summit County Court of Common Pleas, Domestic Relations Division. Additionally,
Appellee/Cross-Appellant, Paul Raykov (“Husband”), cross-appeals from the trial court’s
judgment. This Court affirms in part and reverses in part.
I
{¶2} Husband and Wife were married in 1985. Two children were born during their
marriage. The youngest child is scheduled to graduate high school in 2012.
{¶3} Before the parties were married Husband had completed his medical degree and
residency, and Wife had obtained an associate’s degree in medical technology and a bachelor of
fine arts degree. Wife worked outside of the home until the birth of their first child, at which
time she focused on tending to the children and maintaining the home. Shortly after the
2
marriage, Husband accepted a position as an emergency room physician in Hawaii. The couple
remained in Hawaii until 1997, when Husband accepted a job in Ohio and the family relocated.
{¶4} By the time the couple moved to Ohio in 1997 there was trouble in the marriage.
Husband and Wife moved into separate bedrooms and ceased all sexual relations. The couple
continued to live in the same home and continued to raise the children together. Husband
continued providing the financial support for the family and helped maintain the home by doing
yard work and repairs. Wife continued to focus on raising the children, shopping for groceries,
cooking, and cleaning.
{¶5} In January 2010, Husband filed for divorce. Shortly thereafter, Wife filed a
counterclaim for divorce. The final hearing was held in June 2011. The parties stipulated to the
division of the marital assets, custody, and child support. The only remaining issue was spousal
support. After trial, the court awarded Wife $6,100 a month in spousal support for a term of
seven years. The court retained jurisdiction over the amount of support, but not the duration.
{¶6} Wife now appeals and raises three assignments of error for our review. Husband
has filed a cross appeal and also raises three assignments of error for our review. For ease of
analysis, we consolidate some assignments of error.
II
Wife’s Assignment of Error Number One
THE TRIAL COURT’S FINDING THAT BOTH PARTIES WILL, AFTER
DIVISION, HAVE WELL OVER ONE MILLION IN RETIREMENT ASSETS
IS NOT SUPPORTED BY THE RECORD AND AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶7} In her first assignment of error, Wife argues that the court erred when it found that
both Husband and Wife “will have well over one million in retirement assets.” We agree.
3
{¶8} The Ohio Supreme Court has recently clarified the civil manifest weight analysis
in Eastley v. Volkman, Slip Opinion No. 2012-Ohio-2179. The Eastley Court held that “[i]n civil
cases, as in criminal cases, the sufficiency of the evidence is quantitatively and qualitatively
different from the weight of the evidence.” Eastley at paragraph two of the syllabus.
“‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to determine * * *
whether evidence is legally sufficient to support [a finding] as a matter of law.” State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶9} A verdict that is legally sufficient may still be against the manifest weight of the
evidence. In a challenge as to the weight of the evidence:
[t]he [reviewing] court * * * weighs the evidence and all reasonable inferences,
considers the credibility of the witnesses and determines whether in resolving
conflicts in the evidence, the [finder of fact] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed and a new
trial ordered.
Eastley at ¶ 20, quoting Thompkins at 387. Sufficiency challenges the burden of production,
while manifest weight challenges the burden of persuasion. Eastley at ¶ 19.
{¶10} While Wife argues that the trial court’s finding is against the manifest weight of
the evidence, we conclude that Wife’s challenge is to the burden of production and not to the
burden of persuasion, and therefore, analyze her argument as a challenge to the sufficiency of the
evidence.
{¶11} R.C. 3105.18(C)(1) lists factors that the court must consider when determining the
amount and duration of spousal support. One such factor is “[t]he retirement benefits of the
parties.” R.C. 3105.18(C)(1)(d). Here, the trial court made “specific findings with respect to
request by Wife for spousal support.” In these findings the court stated “Retirement is divided
equally. Both will have well over one million in retirement assets.” Wife argues that once the
4
retirement accounts are divided, she will have less than, and not well over, one million dollars in
retirement.
{¶12} There are three retirement accounts to be split evenly between Husband and Wife:
Hawaii Permanente Medical Group Profit Sharing, Ohio Permanente Medical Group Profit
Sharing, and Physicians Retirement Plan for Ohio Medical Group. At the time of trial, the
approximate values of these accounts were $1,000,000, $250,000, and $709,247, respectively; a
total of $1,959,247. An equal division entitles Wife to $979,623.50. Wife also retained 100% of
her IRA account with an approximate balance of $13,000. After a division of the retirement
accounts, therefore, Wife would have a total of $992,623.50 in retirement.
{¶13} Husband argues that the phrase “retirement assets” was meant to include Wife’s
share of the value of the marital home, which puts her share over a million dollars. This is not a
fair reading of the court’s judgment entry. The court addressed the retirement accounts and
assets on separate lines. On line 7(d) the court found that “Retirement is divided equally. Both
parties will have well over one million in retirement assets.” On line 7(i) the court found that the
“[p]arties have divided assets and liabilities equally.” Husband had agreed to pay Wife $190,000
for her share of the marital property by June 30, 2012. It is not reasonable to read this payment
into the line dividing retirement equally.
{¶14} Husband further argues that the court meant that the parties will both have well
over one million dollars when they retire at some point in the future. We disagree. There is no
indication that the court was trying to predict what the value of the retirement investments would
be on some undetermined future date. Because Wife’s retirement will be less than one million
dollars and the trial court found that both parties would have “well over one million” dollars, we
conclude the trial court erred in its factual finding.
5
{¶15} The trial court was required to consider the factors listed in R.C. 3105.18(C)(1)
when determining the terms and duration of spousal support. These factors include the
retirement benefits of the parties and “income derived from property divided, disbursed, or
distributed.” R.C. 3105.18(C)(1)(a), (d). Because the amount of retirement divided between the
parties is a factor that must be considered when determining spousal support, we are unable to
determine what impact, if any, the factual error had on the spousal support. Accordingly, Wife’s
first assignment of error is sustained.
Wife’s Assignment of Error Number Two
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT LIMITED THE
DURATION OF SPOUSAL SUPPORT.
Wife’s Assignment of Error Number Three
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
RESERVE JURISDICTION OVER THE TERM OF SPOUSAL SUPPORT.
{¶16} In her second and third assignments of error, Wife argues that the court erred
when it limited the duration of spousal support and when it did not retain jurisdiction over the
term. Because we have concluded that Wife’s first assignment of error requires a remand, we
decline to address Wife’s second and third assignments of error. See App.R. 12(A)(1)(c).
Husband’s Assignment of Error Number One
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION BY FAILING TO FIND THAT THE APPELLANT/CROSS-
APPELLEE, NANCY RAYKOV, WAS STILL MARRIED AT THE TIME
THAT SHE ENTERED INTO THE MARRIAGE WITH THE
APPELLEE/CROSS-APPELLANT, PAUL RAYKOV.
{¶17} In his first assignment of error, Husband argues that the court erred when it failed
to find that Wife was still married to her previous husband. Specifically, Husband argues that it
was Wife’s burden to show that her divorce from her first husband was final and that she failed
to meet this burden. We disagree.
6
{¶18} Failure to raise an issue “which [] is apparent at the time of trial, constitutes a
waiver of such issue * * *, and therefore need not be heard for the first time on appeal.” State v.
Awan, 22 Ohio St.3d 120 (1986), syllabus.
{¶19} Husband argues that the burden of proving the validity of the marriage lies with
Wife because of her previous marriage and that Wife failed to provide proof that she was
divorced at the time of entering into the marriage with Husband. However, there is no evidence
in the record that Husband ever disputed the validity of his 26-year marriage to Wife before this
appeal. In all of the cases cited by Husband in his brief, there was a legal dispute over the
validity of a marriage. See Indus. Comm. v. Dell, 104 Ohio St. 389 (1922) (two different women
seeking compensation as widow from deceased’s employer); Dibble v. Dibble, 88 Ohio App. 490
(5th Dist.1950) (two different women claiming to be widow and surviving spouse of Herbert
Dibble); Kaur v. Bharmota, 182 Ohio App.3d 696, 2009-Ohio-2344 (10th Dist.) (two different
women seeking compensation from estate as surviving spouse); Bajurczak v. Estate of
Bajurczak, 139 Ohio App.3d 78 (9th Dist.2000) (two different women seeking to be recognized
as surviving spouse by probate court). These cases are distinguishable from this case where
Husband never raised the issue of the validity of the marriage at the trial level.
{¶20} Husband repeatedly acknowledged that he was married to Wife in 1985 and never
challenged the validity of his marriage at the trial court level. We conclude, therefore, that he
has forfeited this issue on appeal. Husband’s first assignment of error is overruled.
7
Husband’s Assignment of Error Number Two
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE
DETRIMENT OF THE APPELLEE/CROSS-APPELLANT BY FAILING TO
RULE ON HIS MOTION TO COMPEL DISCOVERY.
{¶21} In his second assignment of error, Husband argues that the court erred when it
failed to rule on his motion to compel discovery. We disagree.
{¶22} A trial court’s decision in a discovery matter is reviewed for an abuse of
discretion. Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342, ¶ 18. An abuse of
discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶23} “A motion not expressly decided by the trial court when the case is concluded is
ordinarily presumed to have been overruled.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-
2985, ¶ 13. Husband’s motion, therefore, is deemed to have been denied.
{¶24} Additionally, Summit County Domestic Relations Court Loc.R. 20.05 requires
“[a]ll motions to compel discovery * * * be filed no later than seven days before the status
conference, initial pretrial conference or any hearing subsequent thereto.” Husband filed his
motion to compel discovery on June 28, 2011. The record is unclear as to whether the trial took
place on June 28 or 29, 2011. Either way, however, the motion was not filed seven days before
trial. Moreover, during trial Husband made no mention of his motion to compel or that he was
lacking access to necessary documents. Because Husband’s motion to compel was untimely and
not brought to the attention of the trial court, we cannot conclude that the trial court abused its
discretion by not ruling on his motion. Husband’s second assignment of error is overruled.
8
Husband’s Assignment of Error Number Three
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION BY FAILING TO DETERMINE THAT THE PARTIES’
MARRIAGE HAS ENDED ON DECEMBER 31, 1997.
{¶25} In his third assignment of error, Husband argues that the court erred when it failed
to find that the marriage had a de facto termination date in 1997, when the parties moved into
separate bedrooms. We disagree.
{¶26} When determining an equitable division of marital property and for calculating
spousal support, it is necessary for the court to define the duration of the marriage. See R.C.
3105.171 and 3105.18. Unless it would be inequitable, the duration of a marriage is the period
of time between the date of the marriage and the date of the final divorce hearing. R.C.
3105.171(A)(2)(a). To avoid inequity, the court may find that the marriage ended prior to the
final hearing. See R.C. 3105.171(A)(2)(b). “A trial court’s determination of the dates used in
accordance with R.C. 3105.171(A)(2) is reviewed on appeal under an abuse of discretion
standard.” Dus v. Dus, 9th Dist. No. 18770, 1998 WL 733724, *3 (Oct. 21, 1998). An abuse of
discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.
Blakemore, 5 Ohio St.3d at 219.
{¶27} Husband argues that it was inequitable, and an abuse of discretion, for the court to
find that the marriage ended on the date of the final divorce hearing. Specifically, Husband
argues that the court should have found that the marriage was effectively over in 1997 and the
court should have used this date to calculate his spousal support obligation.
{¶28} Husband and Wife moved to Ohio in 1997, about which time they each moved
into separate bedrooms. Despite not having sexual relations, there is evidence in the record that
Husband and Wife were still functioning as a family unit. Husband and Wife continued to live
9
under the same roof. Husband paid the bills and maintained the home by doing lawn work and
repairs. Wife took care of the children, did the grocery shopping, and the cooking and cleaning.
While there is evidence that Wife did not clean Husband’s bedroom or prepare all of Husband’s
meals, this is not dispositive. After reviewing the record, we cannot conclude that the trial court
abused its discretion when it declined to find that the marriage had a de facto end in 1997.
Husband’s third assignment of error is overruled.
III
{¶29} Wife’s first assignment of error is sustained, and her remaining assignments of
error are moot. Husband’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, is affirmed in part, reversed in
part, and the cause is remanded for further proceedings consistent with the foregoing opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
10
Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
CARR, J.
CONCURS.
DICKINSON, J.
CONCURRING.
{¶30} I concur in the majority’s judgment and all of its opinion except paragraph 24.
APPEARANCES:
KENNETH L. GIBSON and RANDAL A. LOWRY, Attorneys at Law, for Appellant/Cross-
Appellee.
SUSAN K. PRITCHARD, Attorney at Law, for Appellee/Cross-Appellant.