Komes v. Komes

[Cite as Komes v. Komes, 2013-Ohio-2140.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

JENEAN L. KOMES, : OPINION

Plaintiff-Appellee/ :
Cross-Appellant, CASE NO. 2012-L-086
:
- vs -
:
WILLIAM E. KOMES,
:
Defendant-Appellant/
Cross-Appellee. :

Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations
Division, Case No. 09 DR 00121.

Judgment: Affirmed.

Elaine Tassi, 34900 Chardon Road, Suite 207, Willoughby, OH 44094 (For Plaintiff-
Appellee/Cross-Appellant).

Edward A. Heffernan, 28787 Ridge Road, Wickliffe, OH 44092 (For Defendant-
Appellant/Cross-Appellee).

MARY EILEEN KILBANE, J., Eighth Appellate District, sitting by assignment.

{¶1} Defendant-appellant/cross-appellee, William E. Komes (“husband”),

appeals from the final decree issued by the Domestic Relations Division of the Lake

County Common Pleas Court in his divorce from plaintiff-appellee/cross-appellant,

Jenean L. Komes (“wife”), and assigns nine errors for our review. The wife cross-

appeals and assigns two errors for our review. We have determined that none of the

assignments of error are meritorious, and therefore, we affirm.
 {¶2} The parties were married on August 24, 1984. They have three children,

all of whom are emancipated. The husband, who was 57 years old at the time of trial, is

the owner of Power Alarm Systems, a closely held corporation that sells and services

security systems. The wife, who was 50 years old at the time of trial, has a G.E.D. She

assisted the husband with his business, but was primarily a homemaker. Over the

course of the marriage, the parties acquired various real estate, IRAs, and other

accounts.In January 2005, the husband fathered a child with another woman. He

informed the wife about the child in November 2005. On October 31, 2006, he entered

into a written agreement with the mother of that child to pay $500 per month for child

support and $10,000 for past support. He also gave her an additional $10,000 to

$12,000. On February 4, 2009, the wife obtained a temporary protection order against

the husband, following an incident at the marital home. On March 2, 2009, the wife filed

a complaint for divorce. The matter proceeded to trial before a magistrate over four

days, beginning on June 14, 2010.

{¶3} The wife presented expert testimony from Robert Ranallo, C.P.A., an

accountant with the firm of Skoda, Minotti, and Koeth, and a practicing attorney with the

firm of Ranallo & Aveni, L.L.C. Ranallo testified that Power Alarm was formed by the

husband in 1979, and that from that time to the early 1980s Power Alarm was worth

approximately $100,000, or about three times the husband’s annual income from that

time period. In determining the present value of Power Alarm, Ranallo noted that the

business was fairly steady prior to 2006, but it experienced extraordinary growth in 2006

and 2007. Sales again increased from 2008 to 2009. Ranallo opined that Power Alarm

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has a value of $650,000.1 This valuation includes an account receivable in the amount

of $223,500, in connection with the purchase of property located on Cresthaven in

Willowick.

{¶4} The wife testified that she was primarily a stay-at-home mother, but early

in the marriage, she assisted the husband with debt collection, office cleaning, and

business-related entertaining. The wife presented evidence that demonstrated that

Power Alarm paid many of the husband’s entertainment and other expenses as well as

the couple’s personal expenses, travel, and entertainment. The wife testified that the

husband received as much as $100,000 “off the books” or from undeclared cash and

gains from gambling.

{¶5} The parties are also part owners of real estate, located on Lakeland

Boulevard in Euclid, which is rented by Power Alarm. The wife presented evidence that

the value of their marital interest in this parcel is $160,000.

{¶6} The marital home, located on Oakwood Drive in Willoughby Hills, has a

stipulated value of $400,000. The parties own rental property on Mildred Drive in

Willowick, with a stipulated value of $133,060, and rental property located on Bunker

Road in Willowick, with a stipulated value of $128,970. The parties also purchased

property located on Helmsman Road in Port Clinton, which has a stipulated value of

$180,000, and a home in Cancun, Mexico, with a stipulated value of $140,000.

{¶7} Another parcel, located on White Road in Willoughby Hills was purchased

by the husband in 1977, which was prior to the marriage. He transferred the property to

his mother in 1979. In 2008, the husband’s mother executed a Transfer on Death

Deed, conveying the property to the husband upon her death. During the course of the

1. The husband conceded that $645,000 would be an accurate valuation.
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marriage, the $12,425 mortgage for this property was paid off with marital funds. This

parcel, which has a stipulated value of $78,300, was then rented for $900 per month. At

the time of trial, their daughter lived there. EKBK, L.L.C. (“EKBK”) was formed by the

husband, Power Alarm, and the husband’s friend, Ed Krevas (“Krevas”), in 2006.

Power Alarm put approximately $223,500 into this company. The husband has a 75%

interest in the company. The sole asset of the company is property located on

Cresthaven Drive. Power Alarm paid for improvements to the property, and it has a fair

market value of $300,000.

{¶8} Joint exhibits established that in 2005 Power Alarm had gross receipts of

$2,057,213, with a gross profit of $1,003,893. The parties had an adjusted gross

income of $141,423. In 2006, Power Alarm had gross receipts of $2,056,459. The

parties had an adjusted gross income of $258,447. In 2007, Power Alarm had gross

receipts of $2,158,086, with a gross profit of $1,082,085. The parties had an adjusted

gross income of $279,429.

{¶9} In 2008, Power Alarm had gross receipts of $2,013,690, and the parties

had an adjusted gross income of $143,564. In 2009, Power Alarm had gross receipts of

$2,065,805, with a gross profit of $1,059,800. The parties’ adjusted gross income had

not been calculated as of the date of trial.

{¶10} Joint exhibits further established that the parties also have a Morgan

Stanley Smith Barney Account. The statement issued immediately prior to trial

indicates that there is a balance of $75,221. The parties have an American Funds

account with a value of $7,124, a UBS account with $1,496, a Metropolitan Life

Insurance policy with a basic cash value of $29,266, and “paid up additional insurance,”

of $16,773. The parties also net approximately $30,000 from rental income each year.

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 {¶11} With regard to her debts and expenses, the wife testified that she would

have to purchase health insurance, has existing medical bills of $11,000, and that her

total monthly expenses amount to approximately $14,304. She incurred $9,500 in

obtaining a valuation for Power Alarm, and incurred attorney fees of $41,150. The

parties also owe $87,011 on a Chase Bank loan, $15,095 on a second Chase Bank

account, and $4,380 on a Visa credit card issued by Target.

{¶12} The husband testified that he purchased the White Road home prior to the

marriage and also invested a total of $250,000 in the Cresthaven purchase. The

accountant for Power Alarm, Keith Pasa, testified that the husband is the sole

shareholder of the corporation. The husband is permitted to deduct 50% of business

meals and expenses before determining his net income. Pasa did not determine,

however, the total of personal expenses that the company pays on behalf of the

husband, and he did not know if the husband received any additional cash.

{¶13} Krevas testified that he had made an offer to purchase the Cresthaven

parcel for $300,000 but could not obtain financing. In 2006, he approached the

husband, who agreed to assist him with the purchase through Power Alarm. Krevas in

turn gave the husband various promissory notes for the Power Alarm funds.

{¶14} Following the trial, on November 24, 2010, the husband filed a motion to

add critical evidence, complaining that tax liabilities for 2006 and 2009 reduced the

value of Power Alarm by $100,000. The magistrate held a hearing on this motion on

December 8, 2010, and subsequently denied it.

{¶15} The magistrate rendered a 46-page decision on April 18, 2011. The

magistrate valued Power Alarm at $650,000 and awarded each party one-half of this

asset. The magistrate found that the White Road property was the husband’s separate

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property, but gave the wife a distributive award of $22,650 for her share of the marital

funds expended on this parcel. The magistrate also awarded the husband Power

Alarm, EKBK, and Cresthaven, and awarded the wife $325,000 or one-half the value of

Power Alarm. The husband was awarded the Lakeland parcel on which Power Alarm is

located, and the wife was awarded $80,000, the value of one-half of the marital value of

this asset. The magistrate determined that the Bunker Road, Mildred Drive, Oakwood

Drive, Cancun, and Port Clinton properties were all marital property and ordered them

to be sold and the proceeds divided equally. The values of the life insurance, retirement

accounts, and investment assets were also divided equally. The magistrate also found

that the husband had dissipated marital funds in connection with his child born in 2005,

and awarded the wife $31,500 in additional funds. The magistrate also awarded the

wife $10,000 per month for spousal support for two years, then $9,000 per month for

four years, then $8,000 per month for three years.

{¶16} Both parties filed objections to the magistrate’s decision. In an order

dated May 4, 2012, the trial court determined that the magistrate erred in rendering the

spousal support award. The court reduced the award to give the wife $7,000 per month

for seven years. The court also modified the magistrate’s recommendations by

permitting the wife to retain the Oakwood Drive home, reducing her award from Power

Alarm from $325,000 to $305,000, and eliminating her $80,000 award from the

Lakeview parcel in order to give the husband his $100,000 portion of the equity from the

Oakwood Drive home. On June 29, 2012, the court issued the final decree of divorce.

The husband now appeals and assigns nine errors for our review. The wife cross-

appeals and assigns two errors. We shall combine the assignments of error where

they share a common basis in law or in the record.

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 {¶17} Husband’s Assignment of Error One

“The trial court erred and abused its discretion in making an excessive award of spousal

support to Wife. The trial court overestimated husband’s income; erred in finding that

Wife was not voluntarily underemployed; failed to consider that Wife will realize over

$600,000 in cash while Husband will have no liquid assets and failed to impute interest

income to Wife.”

{¶18} Wife’s Cross-appeal Assignment of Error Two

“The court erred and abused its discretion in reducing the amount of spousal support

awarded to Plaintiff-Appellee, where the Magistrate was in the position to determine the

credibility of the witnesses.”

{¶19} As a general matter, we review spousal support issues under an abuse of

discretion standard. See Dunagan v. Dunagan, 8th Dist. No. 93678, 2010-Ohio-5232, ¶

12; Sweet v. Sweet, 11th Dist. Nos. 2007-A-0003 and 2008-A-0003, 2009-Ohio-1924, ¶

97. As long as the decision of the trial court is supported by some competent, credible

evidence going to all the essential elements of the case, we will not disturb it. Id. at ¶

34; Neumann v. Neumann, 8th Dist. No. 96915, 2012-Ohio-591, citing Masitto v.

Masitto, 22 Ohio St.3d 63, 66, 488 N.E.2d 857 (1986). When reviewing a trial court’s

decision for an abuse of discretion, we cannot simply substitute our judgment for that of

the trial court. Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989).

{¶20} In determining whether to grant spousal support and in determining the

amount and duration of the payments, the trial court must consider the factors listed in

R.C. 3105.18. Robinson v. Robinson, 8th Dist. No. 97933, 2012-Ohio-5414;

Ruiz-Bueno v. Ruiz-Bueno, 11th Dist. No. 2007-L-180, 2008-Ohio-3747, ¶ 34. The

factors the trial court must consider include each party’s income, earning capacity, age,

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retirement benefits, education, assets and liabilities, and physical, mental and emotional

condition; the duration of the marriage; their standard of living; inability to seek

employment outside the home; contributions during the marriage; tax consequences;

and lost income due to a party’s fulfillment of marital responsibilities. R.C.

3105.18(C)(1)(a)-(m). In addition, the trial court is free to consider any other factor that

the court finds to be “relevant and equitable.” R.C. 3105.18(C)(1)(n).

{¶21} The trial court is not required to comment on each statutory factor; the

record need only show that the court considered the statutory factors when making its

award. Carman v. Carman, 109 Ohio App.3d 698, 703, 672 N.E.2d 1093 (12th

Dist.1996). If the record reflects that the trial court considered the statutory factors and

if the judgment contains detail sufficient for a reviewing court to determine that the

support award is fair, equitable, and in accordance with the law, the reviewing court will

uphold the award. Matic v. Matic, 11th Dist. No. 2000-G-2266, 2001 Ohio App. LEXIS

3360 (July 27, 2001); Daniels v. Daniels, 10th Dist. No. 07AP-709, 2008 Ohio App.

LEXIS 772 (Mar. 4, 2008), citing Schoren v. Schoren, 6th Dist. No. H-04-019, 2005-

Ohio-2102.

{¶22} In this matter, the trial court separately addressed each of the factors set

forth in R.C. 3105.18 in relation to the evidence presented at trial. Applying R.C.

3105.18(C)(1)(a), (b), (e), (g), (h), and (i), the court noted that the parties had been

married for 26 years, that wife is a homemaker with a G.E.D. who earns no income, and

could at best, earn only the minimum wage, and that the husband has taken several

college classes and has 30 years of experience in his field. The court stated that his

income is impossible to determine with precision because of his ability to receive cash

withdrawals from the business at his sole discretion. The court found the husband’s

8
claim that he earned between $6,000 and $12,000 in cash to lack credibility, and it

determined that it was at least $24,000 per year as he admitted in his deposition prior to

trial. The court carefully evaluated the financial records and determined that the

husband’s annual income is $176,626.

{¶23} Under subdivision (c), the court noted that the wife is in counseling and is

taking an antidepressant. Under subpart (d), the court identified the parties’ retirement

funds. Under subparts (f) and (g), the court noted that the parties enjoyed a high

standard of living, and that the wife contributed to the husband’s earning capacity by

taking care of the home so he could devote more time to his business. In accordance

with subdivisions (j) and (k) the court noted that the wife has lost 26 years of productive

income and higher education during the marriage and will have to obtain her own health

insurance, but the husband has been able to pay considerable personal expenses

through Power Alarm. The court created a spreadsheet addressing the tax

consequences of the divorce as required under subpart (l).

{¶24} From the foregoing, the decision of the trial court is well supported in the

record, and there is competent, credible evidence going to all of the statutory elements

for establishing a spousal support order.

{¶25} The husband complains that the court erroneously relied upon deposition

testimony to support its finding that he made cash withdrawals from Power Alarm of

about $24,000 per year and in imputing $21,000 in extra income from Power Alarm’s

payment of his expenses, for a total of $45,000 in “other income.” The husband also

complains that the court failed to consider that he must pay property taxes on the rental

income.

{¶26} As an initial matter, it is undisputed that the husband admitted in his

9
deposition that he took $24,000 in cash from the business per year, and this is an

admission by a party opponent under Evid.R. 801(D)(2). Further, in determining the

income of the parties, courts have particularly scrutinized situations where a spouse is

the sole shareholder of his corporation and has “unlimited control over the distribution of

the corporation’s profits and assets.” Burkart v. Burkart, 173 Ohio App.3d 252, 2007-

Ohio-3992, 878 N.E.2d 41, ¶ 22 (10th Dist.). Courts have found a need to pay particular

attention to the possibility that a spouse who is the sole shareholder of a business is

engaged in “creative accounting” designed to cloak net income. Id.

{¶27} Here, the court noted that the husband testified at trial that he received

between $6,000 and $12,000 in cash per year from the business, but in his deposition,

he admitted that he received $24,000 per year. The court then determined that the

husband’s trial testimony was not credible. As to the remaining $21,000 in “other

income,” the record clearly demonstrates that Power Alarm pays many other ordinary

expenses for the husband, including his vehicle, insurance, meals, vacations, and

entertainment, and that the parties enjoyed a high standard of living. The trial court’s

findings and conclusions are fully supported in the record, and therefore, we find no

abuse of discretion. Moreover, as to the issue of taxes, it is unclear how much Power

Alarm must pay in property taxes. In any event, the record establishes that the husband

owns the Lakeland Boulevard parcel with a partner, and they split the property taxes.

{¶28} The husband next complains that the court erred in concluding that the

wife was not voluntarily underemployed. The issue of whether a party is voluntarily

unemployed or underemployed is a factual determination to be made by the trial court

based on the circumstances of each particular case. Rock v. Cabral, 67 Ohio St.3d

108, 112, 616 N.E.2d 218 (1993). A trial court does not err in rejecting a claim that a

10
spouse is voluntarily underemployed where the spouse is employed to the same extent

that she was during the marriage and does not have any exceptional skills with which to

improve the employment skill. Lawler v. Lawler, 11th Dist. No. 95-G-1950, 1997 LEXIS

5242 (Nov. 24, 1997).

{¶29} In this matter, the wife was 50 years old at the time of trial, she has a

G.E.D., and has only worked sporadically at the husband’s company. She was also

dealing with issues surrounding the divorce. The record does not indicate that she has

other employment skills. Therefore, we find no abuse of discretion in connection with

the court’s determination that she was not voluntarily underemployed.

{¶30} Finally, as to the complaint that the wife has received the greater

proportion of liquid assets and the husband is without funds to pay all court-ordered

amounts, we note that the presence of significant liquid assets in a distribution of

property is a factor that may be considered by the trial court when awarding spousal

support. O’Grady v. O’Grady, 11th Dist. No. 2003-T-0001, 2004-Ohio-3504, ¶ 87. In

Schalk v. Schalk, 3d Dist. No. 13-07-13, 2008-Ohio-829, the court concluded that the

wife’s larger share of liquid assets militated in favor of a reduction in the spousal support

award.

{¶31} In this matter, we find no abuse of discretion in connection with the court’s

division of liquid assets. As an initial matter, we note that the trial court observed that

the parties had a marriage of long duration, but it reduced the award to wife that was

recommended by the magistrate and awarded her $7,000 per month for seven years.

In addition, the husband was awarded his businesses, which generate considerable

cash and will presumably continue to do so in the future. The court also noted that the

husband can obtain cash from Power Alarm at his sole discretion, has used money from

11
Power Alarm to pay his personal expenses, and has exclusively handled the parties’

finances. The court ordered that the parties’ Bunker Road, Mildred Drive, Port Clinton,

and Cancun properties sold, with the balance divided equally between the parties. The

court’s award was fair and equitable.

{¶32} The wife complains that the trial court erred insofar as it failed to order the

spousal support outlined by the magistrate. The magistrate recommended that the wife

receive $10,000 per month for two years, then $9,000 per month for four years, then

$8,000 per month for three years. The court reduced the award to give the wife $7,000

per month for seven years. The trial court stated:

{¶33} It is important to note that a temporary support order has been in

effect since November 1, 2009. The order provides * * * for a total

of $11,000 per month to be paid by the Husband. * * * As a result,

the Court finds the duration of the temporary order shall be taken

into consideration for an award of spousal support.

{¶34} We accept this rationale, and we find no abuse of discretion in connection

with the court’s deviation from the amount of spousal support chosen by the magistrate.

{¶35} In accordance with the foregoing, these assignments of error are without

merit.

{¶36} Husband’s Assignment of Error Two

“The trial court committed plain error by holding that the husband had dissipated

$43,000 in marital assets. Husband’s actions did not meet the statutory definition of

financial misconduct. The trial court also abused its discretion by adding $20,000 —

that Husband allegedly spent in relation to his son — to the dissipation finding even

though the evidence at trial established that the $20,000 in attorney fees was paid to his

12
divorce counsel.”

{¶37} Pursuant to R.C. 3105.171(E), a trial court has broad discretion to make a

distributive award to a spouse in order to compensate for the financial misconduct of the

other spouse. Hvamb v. Mishne, 11th Dist. No. 2002-G-2418, 2003-Ohio-921, ¶ 14,

citing Lassiter v. Lassiter, 1st Dist. No. C-010309, 2002-Ohio-3136. See also

MacDonald v. MacDonald, 8th Dist. No. 96099, 2011-Ohio-5389. Under R.C.

3105.171(E), financial misconduct includes the dissipation, concealment, destruction, or

fraudulent disposition of assets. R.C. 3105.171(E)(3).

{¶38} In this matter, the evidence of record established that the husband

expended $43,000 of marital funds in connection with the birth of the child born in 2005.

He admitted that he had given the mother of this child about $30,000 in support

payments, $10,000 in a lump sum, and other gifts and smaller sums of money totaling

$2,000-$4,000. The wife received an award of $31,500 in additional funds that the court

determined was depleted in connection with the birth of the child. We therefore find that

the trial court acted within its broad discretion in giving the wife a distributive award of

$31,500.

{¶39} Husband’s Assignment of Error Three

“Trial court erred as a matter of law and abused its discretion when it made a

distributive award of $22,500 regarding the White Road property which was titled in the

name of husband’s mother prior to the marriage. There was no credible evidence that

marital assets were used to cover the cost of maintaining the property.”

{¶40} Wife’s Cross-appeal Assignment of Error One

“The court erred in calculating Defendant-Appellant’s premarital interest in the White

Road property.”

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 {¶41} R.C. 3105.171(A)(6)(a) defines “separate property” to include any real and

personal property that one spouse acquired before the parties were married. In

Worthington v. Worthington, 21 Ohio St.3d 73, 488 N.E.2d 150 (1986), the Ohio

Supreme Court held that the increase in value of separate property is marital property

where it is the result of the couple’s expenditure of a substantial sum of marital funds

and labor.

{¶42} In this matter, the husband complains that since this parcel was titled in

his mother’s name, it cannot be part of the marital estate. The trial court determined

that the value of the husband’s separate interest in this asset is $33,000. The court

concluded, however, that the wife has a marital interest in the parcel valued at $22,650.

The record established that during the course of the marriage, the wife understood that

the parcel was in the husband’s name; however, marital funds from the parties’ joint

checking account were used to pay the mortgage. When the parties later rented it, they

received the rental income. The parties also claimed the depreciation and other

expenses on their income tax returns. On this record, and in light of the lower court’s

determination that the husband’s claim that the rent paid by the tenant covered all of the

expenses for this parcel was not credible, we find no abuse of discretion.

{¶43} The wife claims, however, that the court erred in determining that the

premarital, separate property portion of this parcel was $33,000. She argues that only

$3,500 was paid from the husband’s separate funds. The trial court determined, and

the record indicates that the husband purchased this parcel for $33,000 in 1977. The

husband claimed that his mother helped him purchase the home, but he could not recall

specifics about the purchase. The wife claimed that marital funds were used to pay

expenses for the home during the 26 years of the marriage, but she acknowledged that

14
the property generated rental income. On this record, we cannot say that the trial court

abused its discretion in determining that the husband’s separate interest in the parcel is

$33,000 and that the wife is entitled to $22,650 from her marital interest in this property.

{¶44} Husband’s Assignment of Error Four

“The trial court’s decision regarding attorney fees was an abuse of discretion as the

payment of attorney fees is the responsibility of the person who retains the attorney and

Wife was given ample funds from the division of assets to pay her attorney while

Husband was left with no liquid assets.”

{¶45} Our review of the award of attorney fees is limited to determining (1)

whether the factual considerations upon which the award was based are supported by

the manifest weight of the evidence, or (2) whether the domestic relations court abused

its discretion. Bradbeer v. Bradbeer, 11th Dist. No. 92-L-057, 1993 Ohio App. LEXIS

2184 (Apr. 23, 1993); Neumann v. Neumann, 8th Dist. No. 96915, 2012-Ohio-591, citing

Gourash v. Gourash, 8th Dist. Nos. 71882 and 73971, 1999 Ohio App. LEXIS 4074

(Sept. 2, 1999), and Oatey v. Oatey, 83 Ohio App.3d 251, 614 N.E.2d 1054 (8th

Dist.1992).

{¶46} Pursuant to R.C. 3105.73(A), a court may award all or part of reasonable

attorney fees and litigation expenses to either party if the court finds the award

equitable. In determining whether such 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.”

R.C. 3105.73(B); Riley v. Riley, 11th Dist. No. 2012-A0037, 2013-Ohio-1604, ¶ 67;

Mlakar v. Mlakar, 8th Dist. No. 98194, 2013-Ohio-100.

{¶47} Here, the trial court noted that the wife’s counsel had to expend

15
“extraordinarily more effort to obtain information” regarding Power Alarm’s complicated

purchase of the Cresthaven parcel. In addition, the husband refused to produce

documents requested in discovery, which forced the wife to file motions to compel

discovery thereby incurring additional fees. The court considered that the wife currently

owed $43,825 in attorney fees and expenses, that the husband has already paid $7,000

for her attorney fees, and that the husband paid his attorney fees and related costs

through Power Alarm. The court noted that the wife had no income and there was no

reliable evidence that she could obtain employment of significance. The court awarded

her 60% of her total fees or $30,795. The factual considerations upon which the award

was based are supported by competent credible evidence, and are not against the

manifest weight of the evidence, so we find no abuse of discretion.

{¶48} Husband’s Assignments of Error Five and Six

“The trial court’s failure to credit Husband for the value of the Power Alarm business

that existed prior to the marriage was against the manifest weight of the evidence.”

“The trial court committed plain error in the Breakdown and Division of Assets in the

evaluation and award of Power Alarm assets. Both the Mercedes automobile and the

UBS Retirement Account were held by the Power Alarm Company and were part of the

$650,000 valuation. The trial court also engaged in double-counting in the distribution

of the retirement accounts.”

{¶49} A trial court must generally assign and consider the values of marital

assets in order to equitably divide those assets. See Hightower v. Hightower, 10th Dist.

No. 02AP-37, 2002-Ohio-5488, ¶ 22. Focke v. Focke, 83 Ohio App.3d 552, 615 N.E.2d

327 (2d Dist. 1992); James v. James, 101 Ohio App.3d 668, 656 N.E.2d 399 (2d Dist.

1995).

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 {¶50} Further, “[w]hen the parties have agreed, without objection and with the

judge’s approval, to enter into stipulation for the record, the court will not consider

objections to such stipulations on appeal.” Booth v. Booth, 11th Dist. No. 2002-P-0099,

2004-Ohio-524, ¶ 9, quoting DiGuilio v. DiGuilio, 8th Dist. No. 81860, 2003-Ohio-2197,

¶ 32. Further, in Thomas v. Thomas, 5 Ohio App.3d 94, 98, 449 N.E.2d 478 (5th Dist.

1982), the court stated:

{¶51} [W]here a party has initiated negotiations leading to an in-court

settlement stipulation incorporating essentially all of his demands,

he should not be permitted to contend that the court in approving

and adopting the bargain he struck has acted so unfairly as to

constitute an abuse of discretion as a matter of law.

{¶52} Here, the husband stipulated that the UBS account is a marital asset.

{¶53} In any event, there is no indication that the UBS account was included

within the value of Power Alarm since it was the subject of a separate stipulation.

{¶54} Similarly, there is no evidence that the Mercedes was included within the

Power Alarm valuation, which the trial court determined to be the wife’s separate

property, given to her as an anniversary gift from the husband.

{¶55} As to the husband’s claim that the court erred in failing to deduct the sum

of $100,000 from the valuation of Power Alarm, representing his separate interest in the

company prior to the parties’ marriage, the magistrate observed that the husband did

not identify this asset in a required pretrial identification of separate assets. In addition,

the husband did not provide his expert’s valuation of the company, nor did he provide

anything other than his opinion of the premarital value. The wife’s expert testified that

the present value of the company is $650,000, and the husband conceded that

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$645,000 would be accurate. Therefore, we find no abuse of discretion.

{¶56} These claims are without merit.

{¶57} Husband’s Assignment of Error Seven

“The trial court erred and abused its discretion when it denied Husband’s Motion to Add

Critical Additional Evidence as the evidence impacted the value of Power Alarm. The

trial court erred and abused its discretion when it failed to treat the Husband’s Motion to

Introduce Additional Evidence as a Motion for New Trial.”

{¶58} A new trial may be granted in the sound discretion of the court for good

cause shown, and the court’s ruling will not be reversed absent an abuse of that

discretion. Heidnik v. Heidnik, 11th Dist. Nos. 2012-L-031 and 2012-L-049, 2013-Ohio-

1289, ¶ 18; Byrd v. Byrd, 10th Dist. No. 01AP-946, 2002-Ohio-2579, ¶ 20. A new trial

may be granted on the basis of newly discovered evidence. Civ.R. 59(A)(8). In

general, evidence qualifies as newly discovered evidence if it was in existence at the

time of trial, but the moving party was excusably ignorant of it. Alderman v. Alderman,

10th Dist. No. 10AP-1037, 2011-Ohio-3928, ¶ 17, citing In re C.C., 10th Dist. Nos.

04AP-883 through 04AP-892, 2005-Ohio-5163, ¶ 75.

{¶59} In this matter, however, the trial court determined and the record

establishes that the evidence concerning the 2006 and 2009 tax liabilities was known to

the husband prior to trial. However, the husband waited almost 60 days after trial to

raise this claim.

{¶60} This claim is therefore without merit.

{¶61} Husband’s Assignment of Error Eight

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“The trial court erred as a matter of law assessing interest on the cash award and

interest on any unpaid amounts of property division of marital and corporate assets at

5% where statutory interest is 3% per thousand per the Ohio Revised Code.”

{¶62} Pursuant to R.C. 1343.03, effective June 2, 2004, the appropriate interest

rate on a judgment is determined pursuant to R.C. 5703.47, which provides that the

federal short-term interest rate shall be determined on October 15 of each year.

However, R.C. 1343.03 is applicable only to obligations that are due and payable.

Koegel v. Koegel, 69 Ohio St.2d 355, 357, 432 N.E.2d 206 (1982). Here, the obligation

is not due and payable since it is a promissory note and will not become due and

payable unless, following 90 days after the journalization of the court’s order, the

husband does not make the required payments.

{¶63} This claim therefore lacks merit.

{¶64} Husband’s Assignment of Error Nine

“The trial court erred and abused its discretion when it failed to credit Husband for the

value of the second mortgage on the marital home which was paid off after trial but

before the Court’s Final Judgment of Divorce.”

{¶65} The husband next complains that in rendering its awards, the trial court

failed to give him credit for paying off the second mortgage on the marital home. The

court’s journal entry indicates, however, that it reduced the term of the spousal support

award by two years in light of the lengthy period in which the husband paid temporary

support. The record therefore does not support this assignment of error, so it is without

merit.

{¶66} For all of the foregoing reasons, we find that the husband’s assignments

of error in his appeal and the wife’s assignments of error in her cross-appeal are without

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merit.

{¶67} Judgment affirmed.

LARRY A. JONES, P.J., Eighth Appellate District, sitting by assignment,

PATRICIA ANN BLACKMON, J., Eighth Appellate District, sitting by assignment,

concur.

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