Beringer v. Beringer

[Cite as Beringer v. Beringer, 2014-Ohio-5232.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JAMES BERINGER JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2013 CA 00236
DENISE BERINGER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 2011 DR 01264

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 24, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID E. BUTZ LORRIE E. FUCHS
KRUGLIAK, WILKINS, GRIFFITHS Post Office Box 35787
& DOUGHERTY Canton, Ohio 44735
4774 Munson Street, NW
Post Office Box 36963
Canton, Ohio 44735-6963
Stark County, Case No. 2013 CA 00236 2

Wise, J.

{¶1}. Appellant Denise Beringer appeals from her divorce in the Stark County

Court of Common Pleas, Domestic Relations Division. Appellee James Beringer is

appellant's former spouse. The relevant facts leading to this appeal are as follows.

{¶2}. Appellant and appellee were married on May 31, 2007. One child was

born of the marriage. Divorce proceedings between appellant and appellee were

commenced in 2010 and 2011, but in both instances the complaints and counterclaims

were dismissed.

{¶3}. On October 11, 2011, appellee filed a complaint for divorce. Appellant

thereafter filed an answer and counterclaim. The trial court set temporary orders of child

support at $1,800.00 per month and spousal support at $3,500.00 per month.

{¶4}. The case was originally set for trial on August 20, 2012. As further

discussed infra, the trial was continued until December 2012, continued a second time

until January 2013, and continued again until it was heard over the course of two days

before a magistrate on March 25, 2013 and May 13, 2013.

{¶5}. On September 11, 2013, the magistrate issued his decision granting the

parties a divorce. Among other things, the magistrate found that the de facto termination

of marriage date was August 20, 2012, although appellant had argued that the

termination date of marriage should be the date in which the matter came on for

hearing, March 25, 2013. In addition, appellee was ordered to pay child support, as well

as tuition to St. Michael's School (or the equivalent) for the parties' daughter. The

magistrate also recommended that appellee pay appellant spousal support in twelve

monthly installments of $11,477.57 starting September 1, 2013. Appellee was to
Stark County, Case No. 2013 CA 00236 3

maintain health and life insurance for the child. The magistrate further awarded the

marital residence on Thornwood Street to appellee, with appellee paying appellant

$45,844.00 upon transfer of a quitclaim deed. The magistrate also made

recommendations regarding marital property and separate property. Neither party was

awarded attorney fees by the magistrate.

{¶6}. On September 20, 2013, appellant filed an objection to the magistrate's

decision.

{¶7}. On October 30, 2013, the trial court conducted a hearing on appellant's

objection.

{¶8}. Upon review, the trial court approved the magistrate's decision on

November 5, 2013, with four exceptions. First, there was a clarification of certain items

in the division of personal property, including a desk, chair, and filing cabinet. Second,

the court altered the attorney fee decision, ordering appellee to pay an additional $8,000

as appellant's attorney fees, to be paid within 30 days. Thirdly, the trial court ordered

that the pro rata portion of the 2012 profit sharing contribution, in the amount of

$22,000, was marital property and would be divided equally. Finally, the court found the

personal checking accounts to be marital property, and ordered those assets to be

equalized.

{¶9}. Appellant filed a notice of appeal on December 3, 2013. The trial court

issued a final decree of divorce on December 2, 2013. Appellant thereafter filed an

amended notice of appeal. She herein raises the following five Assignments of Error:

{¶10}. “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

DETERMINED THE DE FACTO TERMINATION DATE OF MARRIAGE TO BE
Stark County, Case No. 2013 CA 00236 4

AUGUST 20, 2012, AND NOT THE DATE WHEN THE CASE WAS HEARD BEFORE

THE COURT.

{¶11}. “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED

TO INCLUDE IN MARITAL PROPERTY AMOUNTS APPELLEE HAD EXPENDED ON

A (SIC) APPELLEE'S MARITAL DEBT TO A FORMER SPOUSE AND PAYMENTS

FOR APPELLEE'S OTHER ADULT CHILDREN, THEREBY REDUCING THE MARITAL

PROPERTY TO BE EQUITABLY DIVIDED WITH APPELLANT.

{¶12}. “Ill. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS

DETERMINATION OF AMOUNT AND DURATION OF SPOUSAL SUPPORT.

{¶13}. “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SIGNED

OVER THE OBJECTIONS OF THE APPELLANT A FINAL DECREE WHICH

CONTAINED A PROVISION WHICH WAS NOT ADDRESSED BY THE MAGISTRATE

NOR APPELLEE ON OBJECTION.

{¶14}. “V. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING

THE VALUE OF MIXES (SIC) ASSETS WHICH WERE PART OF THE MARITAL

ESTATE.”

I.

{¶15}. In her First Assignment of Error, appellant argues the trial court erred in

establishing the term of the parties' marriage, particularly by using the first scheduled

trial date as the de facto termination of marriage date. We disagree.

{¶16}. R.C. 3105.171(A)(2) provides that, except when the court determines that

it would be inequitable, the date of the final hearing is usually the date of termination of

the marriage. Thus, R.C. 3105.171(A)(2) creates a statutory presumption that the
Stark County, Case No. 2013 CA 00236 5

proper date for the termination of a marriage, for purposes of the division of marital

property, is the date of the final divorce hearing. Bowen v. Bowen (1999), 132 Ohio

App.3d 616, 630, 725 N.E.2d 1165. Therefore, it is presumed the date of the final

divorce hearing is the appropriate termination date of the marriage. Glick v. Glick

(1999), 133 Ohio App.3d 821, 828, 729 N.E.2d 1244. However, the trial court has broad

discretion in choosing the appropriate marriage termination date and this decision

cannot be disturbed on appeal absent an abuse of discretion. See Berish v. Berish

(1982), 69 Ohio St.2d 318, 321, 432 N.E.2d 183. A trial court should review the totality

of the circumstances in determining the appropriateness of a de facto termination date.

See Boggs v. Boggs, 5th Dist. Delaware No. 07 CAF 02 0014, 2008-Ohio-1411, ¶ 66.

{¶17}. The record in the case sub judice reveals that the first trial date of August

20, 2012 was continued, upon the request of appellant, so that she could obtain new

counsel. A new trial date was set for December 17, 2012. However, the matter was then

continued from the December date to January 25, 2013, apparently because the

magistrate was ill. However, on January 17, 2013, appellant's second counsel filed a

motion to withdraw from representation. The trial court granted the withdrawal of

counsel and continued the trial until March 25, 2013.

{¶18}. Appellant presently seeks to portray the marriage termination date issue

as an instance of the trial court punishing her for changing counsel, which she maintains

were based on fee disputes or conflicts of interest. See Appellant's Brief at 9. However,

the record indicates that appellant and her first attorney "were not seeing eye to eye on

things," (Tr., January 23, 2013, at 11) and her second attorney told the court that her

client had lost confidence in her representation, although it appears some fee issues
Stark County, Case No. 2013 CA 00236 6

may have been involved (id. at 3). Moreover, the magistrate patently considered the

totality of the circumstances, over and above the continuance factor. The magistrate

noted, for example, that appellee was forced to seek an order to obtain income tax

information and an order to compel discovery on July 31, 2012, that appellant refused to

provide the book she had written in spite of a stipulated order dated September 11,

2012, and that testimony indicated that the parties had no relations after June or July

2012. Magistrate's Decision at 3. Also, the parties lived separate and apart after the

couple's last reconciliation attempt failed on June 6, 2012, and appellee agreed to

purchase his own home on July 15, 2012, after living in hotels for a number of months.

Id. Finally, the magistrate found the parties had ceased to function as a family unit prior

to August 20, 2012, and that appellee had no intention of dismissing the divorce after

August 2012. Id.

{¶19}. The magistrate also determined: "[t]his matter could have been prepared

by counsel for three different trial dates and three different attorneys. The de facto

marriage termination date assured counsel of a fixed date for determination of marital

property and valuation thereof. It would be inequitable to allow WIFE to force

HUSBAND to guess which date the court would select and provide property evaluations

for each possible date." See Magistrate's Decision at 3.

{¶20}. Accordingly, upon review, we conclude that the trial court fully considered

the term of marriage issue, and we find no abuse of discretion in the trial court's

selection of August 20, 2012, as the de facto termination date of the marriage.

{¶21}. Appellant's First Assignment of Error is therefore overruled.
Stark County, Case No. 2013 CA 00236 7

II.

{¶22}. In her Second Assignment of Error, appellant argues the trial court abused

its discretion in dividing marital property by failing to account for certain payments made

during the marriage by appellee to his ex-wife, pursuant to his prior divorce, and to his

adult children. We disagree.

{¶23}. Historically, “[t]he concept of marital property is derived from the premise

that marriage is a voluntary partnership of co-equal partners with a division of duties

and labor that entitles each partner to a one-half interest in the assets accumulated from

the fruits of the partnership activity while the marriage is functioning.” Tomlin v. Tomlin

(March 16, 1987), Montgomery App. No. 10094, citing Wolfe v. Wolfe (1976), 46 Ohio

St.2d 399, 350 N.E.2d 413. An appellate court generally reviews the overall

appropriateness of the trial court's property division in divorce proceedings under an

abuse of discretion standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d

1293. Thus, a trial court should be given wide latitude in dividing property between the

parties. See Koegel v. Koegel (1982), 69 Ohio St.2d 355, 432 N.E.2d 206.

{¶24}. Furthermore, as an appellate court, we are not the trier of fact. Our role is

to determine whether there is relevant, competent, and credible evidence upon which

the factfinder could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d

768, 936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing Cross Truck v. Jeffries (Feb. 10,

1982), Stark App. No. CA–5758, 1982 WL 2911. The trier of fact is in a far better

position to observe the witnesses' demeanor and weigh their credibility. See, e.g.,

Taralla v. Taralla, Tuscarawas App. No. 2005 AP 02 0018, 2005–Ohio–6767, ¶ 31,

citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212.
Stark County, Case No. 2013 CA 00236 8

{¶25}. R.C. 3105.171(E)(4) directs that “[i]f a spouse has engaged in financial

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

nondisclosure, or fraudulent disposition of assets, the court may compensate the

offended spouse with a distributive award or with a greater award of marital property.”

Payments to Appellee's Ex-wife

{¶26}. The record in the case sub judice indicates that as a result of appellee's

prior divorce, appellee had issued a zero-interest note to his ex-wife in the amount of

$350,000.00 as a settlement for appellee's retention of certain company stock. Appellee

essentially had the option of paying back his ex-wife over the course of several years,

interest free. See Tr. I at 58-59. However, appellant and appellee discussed this matter

prior to their marriage, and appellant insisted that appellee deal with the remainder of

this debt. Appellee liquidated $205,000.00 of his separate property, namely certificates

of deposit, and applied the money to the note obligation. He then used $50,500.00 of

marital assets early in the marriage to satisfy the remainder. See Tr. I at 59. Appellant

presently argues that the latter sum should have been accounted for in the distribution

of property by crediting her with one-half of the amount paid during the marriage.

{¶27}. Appellant directs us to our decision in Sowers v. Sowers, 5th Dist. Licking

No. 00CA3, 2000 WL 968807, in which we affirmed a trial court's determination that had

found that the wife was entitled to a credit of $12,500 for payment of husband's

premarital debt of $25,000, where marital assets were used to pay off this preexisting

debt. We found the trial court had not abused its discretion in ordering this distribution of

property. Appellant also cites our decision in Tilmant v. Tilmant, 5th Dist. Knox No.

2004CA000024, 2005-Ohio-5939. In Tilmant, the marital residence had two mortgages,
Stark County, Case No. 2013 CA 00236 9

the second being an equity line of credit in the amount of $60,113.53. The trial court

found that the husband had used $19,208.83 of the second mortgage loan to pay off his

separate premarital debts. The trial court determined that one-half of that amount, or

$9,604.41, should be considered as husband's separate debt, and therefore set off that

amount from husband's separate premarital interest in the marital residence. Id. at ¶ 15.

We affirmed, holding the trial court had properly exercised its discretion. Id. at ¶ 33.

{¶28}. We note in both Sowers and Tilmant, the trial court had allowed the credits

or set-offs against the party responsible for the premarital debt, and we affirmed in both

cases under an abuse-of-discretion standard. However, the procedural situation here is

different, in that the trial court sub judice declined to grant any credit in appellant's favor.

Appellant urges that we mandate such a credit, yet she has provided no case law in

which an appellate court has concluded a trial court abused its decision in failing to

effectively re-characterize such a premarital debt. Upon review, we are not inclined to

substitute our judgment on this point for that of the trial court in exercising its discretion

to craft an equitable division of property under the circumstances of this case.

Payments to Appellee's Adult Children

{¶29}. Appellant also argues that payments during the marriage to trusts for his

adult children born of his previous marriage (approximately $105,000.00), as well as

payments to an adult daughter who has cerebral palsy (approximately $104,000.00),

should also have been cause for appellant to receive a credit in the distribution of

property.

{¶30}. However, the trial court carefully considered this issue and determined

that the financial transfers to his adult children were part of a plan in place prior to the
Stark County, Case No. 2013 CA 00236 10

marriage of appellant and appellee, and they were not done in an attempt to evade the

proper distribution of property in the present divorce. See Magistrate's Decision at 4.

Furthermore, as appellee suggests in his response brief, it would further complicate the

task of property division to encourage litigants in divorce cases to argue, absent cases

of financial misconduct, that solo expenditures during the marriage, such as gifts to

family members, vacations or items only enjoyed by one spouse, or other expenses of

which one spouse disapproves, should necessarily result in a greater share of the

marital estate to one side.

{¶31}. Upon review of the trial record, and viewing the award in its entirety, we do

not find the trial court abused its discretion in assessing the testimony and in dividing

the parties' property, as urged by appellant.

{¶32}. Appellant's Second Assignment of Error is therefore overruled.

III.

{¶33}. In her Third Assignment of Error, appellant contends the trial court abused

its discretion in deciding the amount and duration of spousal support awarded to her.

We disagree.

{¶34}. A trial court's decision concerning spousal support may only be altered if it

constitutes an abuse of discretion. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67,

554 N.E.2d 83. An 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, 5 Ohio St.3d 217 (1983).

{¶35}. R.C. 3105.18(C)(1)(a) through (n) provides the factors that a trial court is

to review in determining a spousal support obligation:
Stark County, Case No. 2013 CA 00236 11

{¶36}. “(C)(1) In determining whether spousal support is appropriate and

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

of spousal support, which is payable either in gross or in installments, the court shall

consider all of the following factors:

{¶37}. “(a) The income of the parties, from all sources, including, but not limited

to, income derived from property divided, disbursed, or distributed under section

3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The

ages and the physical, mental, and emotional conditions of the parties; (d) The

retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to

which it would be inappropriate for a party, because that party will be custodian of a

minor child of the marriage, to seek employment outside the home; (g) The standard of

living of the parties established during the marriage; (h) The relative extent of education

of the parties; (i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties; (j) The contribution of each party to the

education, training, or earning ability of the other party, including, but not limited to, any

party's contribution to the acquisition of a professional degree of the other party; (k) The

time and expense necessary for the spouse who is seeking spousal support to acquire

education, training, or job experience so that the spouse will be qualified to obtain

appropriate employment, provided the education, training, or job experience, and

employment is, in fact, sought; (l) The tax consequences, for each party, of an award of

spousal support; (m) The lost income production capacity of either party that resulted

from that party's marital responsibilities; (n) Any other factor that the court expressly

finds to be relevant and equitable.”
Stark County, Case No. 2013 CA 00236 12

{¶38}. While R.C. 3105.18(C)(1), supra, does set forth fourteen factors the trial

court must consider, if the court does not specifically address each factor in its order, a

reviewing court will presume each factor was considered, absent evidence to the

contrary. Carroll v. Carroll, Delaware App.No. 2004-CAF-05035, 2004-Ohio-6710, ¶ 28,

citing Watkins v. Watkins, Muskingum App. No. CT 2001-0066, 2002-Ohio-4237

(additional citations omitted).

{¶39}. In the case sub judice, the magistrate ordered spousal support to

appellant in the amount of $10,670.00 per month for a term of eighteen months. After

adjusting for prior support received by appellant during the pending case, the magistrate

ordered a sum of $137,730.84 payable in twelve monthly installments of $11,477.57 per

month, beginning September 1, 2013, finding "[t]he terms of payment are equitable in

view of the distortion of this matter by the undue delay in the proceedings." Magistrate's

Decision at 9. The trial court approved and adopted this calculation.

{¶40}. The essential facts going to the issue of spousal support listed in the

decision are not in significant dispute. As of the time of the divorce, appellant was 47

years old; appellee was 58. Both were in good health, and both had been through a

prior marriage. The children born of said prior marriages had all reached adulthood.

Appellant has an associate's degree from Kent State University and has taken real

estate classes. Her prior job at GE averaged $20,993.00 per year for the years 2006

through 2007; she left that job after the birth of the parties' daughter and has not

become re-employed. Appellee is the owner of a plating company. His personal income

averaged $367,000.00 per year over a three-year period. The trial court, via its adoption
Stark County, Case No. 2013 CA 00236 13

of the spousal support portion of the magistrate's decision, found the parties' standard

of living during the marriage to be comfortable.

{¶41}. Although the present income disparity is readily apparent in this instance,

the trial court concluded that appellant "has resources, ability and potential to be self-

supporting," but that appellee had fewer income-producing years left. Magistrate's

Decision at 9. The court noted that appellant owns a mortgage-free premarital residence

in Lake Cable (being used as a rental property) and owns a 2009 Buick with no debt on

the vehicle. In addition, the court found that appellant's claimed living expenses were

"grossly inflated." Id. Finally, the court duly found that the marriage of sixty-three

months, with separation after forty-three months, was not long-term. Id.

{¶42}. It has been aptly recognized that "[w]hile each case is unique, and hard

and fast rules are not applicable, courts generally award spousal support for lengthy

periods after marriages of long duration." Barrientos v. Barrientos, 3rd Dist. Hancock

No. 5–12–13, 2013-Ohio-424, ¶ 36 (emphasis added). Upon review of the record, we

are unpersuaded the trial court abused its discretion in adopting the magistrate's award

of spousal support to appellant of $11,477.57 per month to be paid over twelve months

under the facts and circumstances of this case.

{¶43}. Appellant's Third Assignment of Error is therefore overruled.

IV.

{¶44}. In her Fourth Assignment of Error, appellant argues that the trial court

abused its discretion in setting a date for appellant to vacate the marital residence. We

disagree.
Stark County, Case No. 2013 CA 00236 14

{¶45}. In dividing property in a divorce, a court attempts to disentangle the

parties' economic partnership so as to create finality to the marriage. See Smith v.

Smith, Franklin App. No. 95APF06–719, 1995 WL 771441, citing Hoyt v. Hoyt (1990),

53 Ohio St.3d 177, 559 N.E.2d 1292. Furthermore, we have frequently recognized that

an appellant, in order to secure reversal of a judgment, must generally show that a

recited error was prejudicial to her. See Tate v. Tate, Richland App.No. 02–CA–86,

2004–Ohio–22, ¶ 15, citing Ames v. All American Truck & Trailer Service (Feb. 8, 1991),

Lucas App. No. L–89–295.

{¶46}. In the final decree of December 2, 2013, the trial court, rather than

compelling appellant to move immediately from the marital residence, gave appellant an

opportunity until February 15, 2014 to find another place to live. The record establishes

that appellant owns another home in Lake Cable which is her premarital separate

property. We find the order in question afforded her the additional right of remaining in

the marital home for a period of time after the final decree. Appellant does not articulate

why the setting of the post-decree date to vacate the marital residence would constitute

prejudicial error and does not suggest what relief would be sought upon remand from

this Court.

{¶47}. Appellant's Fourth Assignment of Error is therefore overruled.

V.

{¶48}. In her Fifth Assignment of Error, appellant argues that the trial court

abused its discretion in determining the value of certain "mixed assets." We disagree.

{¶49}. We reiterate that as an appellate court, we generally review the overall

appropriateness of the trial court's property division in divorce proceedings under an
Stark County, Case No. 2013 CA 00236 15

abuse of discretion standard. Cherry, supra. Furthermore, we have long expressed our

reluctance to engage in piecemeal review of individual aspects of a property division

taken out of the context of the entire award. See Harper v. Harper (Oct. 11, 1996),

Fairfield App.No. 95 CA 56, citing Briganti v. Briganti (1984), 9 Ohio St.3d 220, 459

N.E.2d 896.

{¶50}. Appellant focuses on three assets, all of which were found to have marital

property values but which were awarded to appellee in the property division: (1) A 1998

Piper Archer airplane, valued at $15,319.00 in the decree; (2) an aircraft hangar, "Unit

72," valued at $8,946.00 in the decree; and (3) a T-51 Mustang airplane (jointly built by

appellee and his father), valued at $8,485.00 in the decree.

{¶51}. During the trial, appellee called Richard Craig, CPA, to the stand to

analyze and separate the marital property and separate property component for these

assets, for which some marital funds had been expended in the form of loan

repayments or other transfers. See Tr. at 90-102. Appellant had the opportunity to

present evidence to challenge Mr. Craig's conclusions or present her own expert, but

she instead utilized a reasonable strategy of extensive cross-examination of his

calculations. See Tr. at 102-150. Upon review, although appellant at trial zealously

argued for different accounting methodologies regarding the two aircraft and the hangar,

and continues to do so in the present appeal, we find the trial court's acceptance of the

valuations presented by the accounting expert Mr. Craig was not arbitrary,

unreasonable or unconscionable.
Stark County, Case No. 2013 CA 00236 16

{¶52}. Appellant's Fifth Assignment of Error is therefore overruled.

{¶53}. For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.

JWW/d 1106
Stark County, Case No. 2013 CA 00236 17