Kess v. Kess

[Cite as Kess v. Kess, 2018-Ohio-1370.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JAMES C. KESS : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 17 CAF 05 0029 &
: 15 CAF 10 0076
ROBERTA J. KESS :
:
:
Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, Domestic Relations
Division, Case No. 09 DR A 11 0551

JUDGMENT: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART

DATE OF JUDGMENT ENTRY: April 10, 2018

APPEARANCES:

For Plaintiff-Appellant: For Defendant-Appellee:

NICHOLAS W. YAEGER MICHAEL A. PARTLOW
580 South High St., Suite 200 112 S. Water St., Suite C
Columbus, OH 43215 Kent, OH 44240
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 2

Delaney, J.

{¶1} Plaintiff-Appellant James C. Kess appeals multiple judgment entries of the

Delaware County Court of Common Pleas, Domestic Relations Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Plaintiff-Appellant James C. Kess (“Husband”) and Defendant-Appellee

Roberta J. Kess (“Wife”) were married on June 19, 1987. Three children were born as

issue of the marriage.

{¶3} Husband filed a complaint for divorce on November 12, 2009. Wife filed her

answer and counterclaim on November 17, 2009.

{¶4} The matter proceeded to trial before the magistrate on June 13, 2014 and

June 16, 2014. The magistrate issued a Magistrate’s Decision on August 27, 2015. The

Magistrate’s Decision included a header stating, “FINDINGS OF FACT and

CONCLUSIONS OF LAW,” which was followed by 52 paragraphs reciting evidence

adduced at trial and the magistrate’s recommendations including the parties’ earning

capacities, property distributions, spousal support, and child support. The Findings of Fact

and Conclusions of Law were followed by 39 paragraphs of the magistrate’s orders.

{¶5} Relevant to this appeal, the magistrate reviewed the parties’ marital and

separate assets. During the pendency of the divorce proceedings, Husband filed a

Chapter 7 bankruptcy petition. The marital residence was sold by the Trustee. The sale

net proceeds were approximately $64,609.20. Wife received $17,500, Husband received

$12,500, and Husband’s bankruptcy estate received $34,359.20. The magistrate further

reviewed the parties’ personal property, insurance policies, financial assets, and debts as

presented at the trial. The magistrate found Husband was entitled to $105,832.20 in
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 3

assets and Wife was entitled to $86,761.00 in assets. The magistrate distributed all

marital debt to Wife in the amount of $57,668.00. The magistrate recommended Husband

pay Wife a distributive award in the amount of $38,369.60 to equalize the distribution to

$67,462.60 for each party.

{¶6} Also relevant to this appeal, evidence was presented as to the parties’

earning capacities. At the time of the trial, Husband was 51 years old. Husband was

employed at Angelo’s Pizza, a restaurant owned by his brother, as a dining room manager

earning $20 per hour or $41,600 per year. He attended Ohio State University for two

years. Husband has been employed as a fast food cook, construction superintendent,

building equipment and supply sales representative, and food service manager. A

vocational expert testified Husband’s earning capacity was between $49,945 and

$60,278. The magistrate reviewed Husband’s reported wages from 2009 to 2013.

{¶7} Wife was 46 years old at the time of the trial. Wife was a high school

graduate. Her highest earned income was approximately $40,000 as an offset printer.

She stopped working full-time in 2002, but worked some part-time jobs at department

stores. Wife had medical issues which limited her employability. A vocational expert

testified Wife was capable of earning $15,000 to $21,000 per year.

{¶8} The magistrate imputed income to Husband in the amount of $49,945.00

and Wife in the amount of $15,000. The magistrate recommended Husband pay spousal

support in the amount of $750 per month for a period of eight years. The magistrate further

recommended Husband pay child support in the amount of $769.33 per month.

{¶9} On September 2, 2015, Husband filed a Request for Findings of Fact and

Conclusions of Law.
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 4

{¶10} On September 8, 2015, the trial court denied Husband’s request for findings

of fact and conclusions of law. The trial court found the magistrate issued a 20-page

decision that included 52 findings of fact and conclusions of law. For that reason, the trial

court denied the request.

{¶11} The trial court adopted the Magistrate’s Decision on September 11, 2015.

{¶12} Husband attempted to file objections to the Magistrate’s Decision with the

Delaware County Clerk of Courts on September 22, 2015. The Clerk of Courts rejected

Husband’s Objections for filing because it determined the objections were untimely.

Husband filed a motion for leave to file supplemental objections on September 22, 2015.

On September 25, 2015, the trial court denied the motion for leave because it found there

were no objections to supplement.

{¶13} A transcript of the proceedings was filed on September 28, 2015. The

record does not reflect when Husband requested the transcript.

{¶14} On October 7, 2015, Husband filed an appeal of the September 11, 2015

judgment entry in Case No. 15 CAF 10 0076. Husband also filed a Writ of Mandamus to

order the Delaware County Clerk of Courts to accept and file his Objections to the

Magistrate’s Decision. We stayed Case No 15 CAF 10 0076 during the pendency of the

Writ of Mandamus. On January 26, 2017, we ordered the Delaware County Clerk of

Courts to accept Husband’s Objections for filing. We held it was the purview of the trial

court to determine whether Husband’s Objections were timely filed. Husband’s Objections

were filed and backdated as of September 22, 2015. State ex rel. Kess v. Antonoplos, 5th

Dist. Delaware No. 16CAD030010, 2017-Ohio-305. On March 10, 2017, this Court
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 5

remanded the matter to the trial court for the purpose of determining the timeliness of

Husband’s Objections and whether to consider the Objections.

{¶15} Upon the remand of the matter to the trial court, the parties filed briefs on

the issue of whether Husband’s Objections were timely filed. On April 4, 2017, the trial

court ruled Husband’s Objections were not timely filed.

{¶16} Husband filed a notice of appeal of the trial court’s decision in Case No. 17

CAF 05 0029. This Court consolidated Case Nos. 15 CAF 10 0076 and 17 CAF 05 0029

for appeal.

ASSIGNMENTS OF ERROR

{¶17} Husband raises three Assignments of Error:

{¶18} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

REVERSIBLE ERROR BY DENYING THE APPELLANT’S REQUEST FOR

ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW AND BY FINDING

THAT THE APPELLANT’S OBJECTIONS WERE NOT TIMELY FILED AS PROVIDED

IN OHIO CIVIL RULE 53(B).

{¶19} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

REVISABLE [SIC] ERROR BY ADOPTING THE PROPERTY DIVISION CONTAINED

WITHIN THE MAGISTRATE’S DECISION AS THE MAGISTRATE’S DECISION WAS

NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS

CONTRARY TO OHIO REVISED CODE §3105.171.

{¶20} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN THE IMPUTATION OF INCOME AND CALCULATION OF BOTH

CHILD AND SPOUSAL SUPPORT.”
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 6

ANALYSIS

I. Timeliness of Objections to Magistrate’s Decision

{¶21} Husband argues in his first Assignment of Error that the trial court erred

when it denied his request for findings of fact and conclusions of law and then found his

objections to the Magistrate’s Decision were not timely filed.

{¶22} Civ.R. 53(D) states, in relevant part, as follows:

(3) Magistrate's Decision; Objections to Magistrate's Decision.

(a) Magistrate's decision.

(i) When required. Subject to the terms of the relevant reference, a

magistrate shall prepare a magistrate's decision respecting any matter

referred under Civ.R. 53(D)(1).

(ii) Findings of fact and conclusions of law. Subject to the terms of the

relevant reference, a magistrate's decision may be general unless findings

of fact and conclusions of law are timely requested by a party or otherwise

required by law. A request for findings of fact and conclusions of law shall

be made before the entry of a magistrate's decision or within seven days

after the filing of a magistrate's decision. If a request for findings of fact and

conclusions of law is timely made, the magistrate may require any or all of

the parties to submit proposed findings of fact and conclusions of law.

(iii) Form; filing, and service of magistrate's decision. A magistrate's

decision shall be in writing, identified as a magistrate's decision in the

caption, signed by the magistrate, filed with the clerk, and served by the

clerk on all parties or their attorneys no later than three days after the
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 7

decision is filed. A magistrate's decision shall indicate conspicuously that a

party shall not assign as error on appeal the court's adoption of any factual

finding or legal conclusion, whether or not specifically designated as a

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the

party timely and specifically objects to that factual finding or legal conclusion

as required by Civ.R. 53(D)(3)(b).

(b) Objections to Magistrate's Decision.

(i) Time for filing. A party may file written objections to a magistrate's

decision within fourteen days of the filing of the decision, whether or not the

court has adopted the decision during that fourteen-day period as permitted

by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party

may also file objections not later than ten days after the first objections are

filed. If a party makes a timely request for findings of fact and conclusions

of law, the time for filing objections begins to run when the magistrate files

a decision that includes findings of fact and conclusions of law.

(ii) Specificity of objection. An objection to a magistrate's decision shall be

specific and state with particularity all grounds for objection.

(iii) Objection to magistrate's factual finding; transcript or affidavit. An

objection to a factual finding, whether or not specifically designated as a

finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript

of all the evidence submitted to the magistrate relevant to that finding or an

affidavit of that evidence if a transcript is not available. With leave of court,

alternative technology or manner of reviewing the relevant evidence may
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 8

be considered. The objecting party shall file the transcript or affidavit with

the court within thirty days after filing objections unless the court extends

the time in writing for preparation of the transcript or other good cause. If a

party files timely objections prior to the date on which a transcript is

prepared, the party may seek leave of court to supplement the objections.

(iv) Waiver of right to assign adoption by court as error on appeal. Except

for a claim of plain error, a party shall not assign as error on appeal the

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

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

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

required by Civ.R. 53(D)(3)(b).

{¶23} The Magistrate’s Decision was filed on August 27, 2015. It stated it

contained findings of facts and conclusions of law, which was comprised of 52 paragraphs

reviewing the evidence presented at trial and reaching conclusions as to the elements of

Husband’s divorce claim. Within seven days of the Magistrate’s Decision, Husband filed

a motion on September 2, 2015 motion stating he was requesting findings of fact and

conclusions of law pursuant to Civ.R. 53(D)(3)(a)(ii). Husband’s request did not state he

was seeking supplemental findings and conclusions. On appeal, Husband contends the

trial court abused its discretion in denying his request for findings of fact and conclusions

of law because he sought more clarity on the magistrate’s findings and conclusions, such

as how the magistrate determined Husband’s imputed income. On September 8, 2015,

the trial court denied Husband’s request for findings of fact and conclusions of law.

Pursuant to Civ.R. 53(D)(3)(b)(i), objections to the Magistrate’s Decision were due on
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 9

September 10, 2015. The trial court adopted the Magistrate’s Decision on September 11,

2015, fifteen days after the Magistrate’s Decision was filed. Husband filed his objections

to the Magistrate’s Decision on September 22, 2015, 26 days after the Magistrate’s

Decision was issued. By judgment entry, the trial court rejected Husband’s objections as

being untimely filed based on its previous decision to deny Husband’s request for findings

of fact and conclusions of law.

{¶24} Civ.R. 53 does not require a magistrate to issue a decision containing

findings of fact and conclusions law in every case. Civ.R. 53(D)(3)(a)(ii) states, “Subject

to the terms of the relevant reference, a magistrate’s decision may be general unless

findings of fact and conclusions of law are timely requested by a party or otherwise

required by law.” Husband does not contend the Magistrate’s Decision was a general

decision. He contends on appeal he requested findings of fact and conclusions of law to

provide clarity on the magistrate’s recommendations. The plain language of Civ.R. 53

provides no statutory guidance for a request for supplemental findings of fact and

conclusions of law. As noted by this Court in Hutta v. Hutta, 5th Dist. Delaware No.

10CAF040031, 2011–Ohio–3041 at paragraph 15: “If a magistrate has not prepared

findings of fact or has prepared findings of fact that are insufficient, the burden is on the

party objecting to request findings of fact from the magistrate pursuant to Civ. R. 52 and

Civ. R. 53(E)(2). Rush v. Schlagetter (April 15, 1997), Ross App. No. 96CA2215,

unreported.” Digenova v. Digenova, 5th Dist. Tuscarawas No. 2015 AP 07 0045, 2016-

Ohio-1080, ¶ 25. Findings of fact and conclusions of law allow the reviewing court to gain

a clear understanding of the basis of the lower court’s decision and to determine the

grounds on which the magistrate or trial court reached its decision. See State v. Jacks,
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 10

5th Dist. Licking No. 99 CA 113, 2000 WL 329740 (Feb. 29, 2000), citing State v. Lester,

41 Ohio St.2d 51, 322 N.E.2d 656 (1975). The findings of fact and conclusions of law

should be explicit enough to sufficiently apprise the parties and the court of the grounds

for the decision. See State v. Staats, 5th Dist. Stark No. 2015CA00207, 2016–Ohio–2921.

{¶25} A party’s request for findings of fact and conclusion of law pursuant to Civ.R.

52(D)(3)(a)(ii) is a request to the trial court to determine whether the magistrate’s decision

was sufficiently specific to satisfy the requirements of Civ.R. 53(D)(3)(a)(ii). This Court

has found it is within the trial court’s discretion whether to grant a request for findings of

fact and conclusions of law. United Studios of Am. v. Laman, 5th Dist. Stark No.

2007CA00277, 2008-Ohio-3497, ¶ 55.

{¶26} In this case, the trial court found the Magistrate’s Decision met the

requirements of Civ.R. 53(D)(3)(a)(ii). The trial court denied Husband’s request for

findings of fact and conclusions of law because it found the Magistrate’s Decision already

contained findings and conclusions on all matters presented in Husband’s complaint and

Wife’s counterclaim. Upon review of its judgment when considering whether Husband’s

objections to the Magistrate’s Decision were timely filed, the trial court found the

Magistrate’s Decision “did not merely regurgitate the evidence presented at trial.”

(Judgment Entry, Apr. 4, 2017). The trial court found the magistrate made specific findings

of fact such as to spousal support and the parties’ usage of marital funds. The trial court

also referred to the magistrate’s conclusions of law as to spousal support, distributive

award, and award of attorney’s fees. (Judgment Entry, Apr. 4, 2017).

{¶27} Our review of the Magistrate’s Decision reveals the magistrate thoroughly

examined and reviewed the elements of Husband’s complaint for divorce and Wife’s
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 11

counterclaim. The magistrate made sufficient findings of fact and conclusions of law as

to spousal support, the parties’ earning capacities, child support, property division,

equalization of the property division, and distributive award.

{¶28} We distinguish the findings of fact and conclusions of law found in the

present case from those analyzed in Waliga v. Goon, 5th Dist. Ashland No. 13-COA-008,

2013-Ohio-5687, cited by Husband in support of his argument. In Waliga, the magistrate’s

decision was issued on March 14, 2013. The magistrate, in his Decision, made the

following findings of facts and conclusions of law: “Plaintiffs have proven their claims for

damages for repairs and back rent by the preponderance of the evidence. Plaintiffs are

entitled to recover from Defendants back rent of $1,534.48, cost of repair of damages and

clean up the sum of $2115.00 and reasonable attorney fees of $1,500.00.” Id. at ¶ 27.

The appellant filed a timely request for findings of fact and conclusions of law. The

magistrate denied the request, finding that he had issued the same. In response,

appellant filed a Motion to Set Aside the order. The trial court overruled appellant’s Motion

to Set Aside the Magistrate's Order of March 27, 2013, finding that the magistrate's March

14, 2013 Decision contained sufficient findings of fact and conclusions of law. Id. at ¶ 28.

{¶29} We disagreed. We found the magistrate’s decision did not contain findings

of fact. Because appellant made a timely request for findings of fact and conclusions of

law, the time for filing objections did not begin to run until the magistrate filed a decision

that included findings of fact and conclusions of law. Without findings of fact and

conclusions of law, appellant would not have known what issues to raise in his objections.

Id. at ¶ 29.
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 12

{¶30} In this case, the Magistrate issued 52 paragraphs to explain the findings of

fact and conclusions of law. Husband does not argue the Magistrate issued a general

decision. It appears from Husband’s arguments that he did not agree with the conclusions

reached by the magistrate and adopted by the trial court, but that does not impact the

sufficiency of the findings of fact and conclusions of law issued in the Magistrate’s

Decision for Husband to file objections to the decision.

{¶31} After finding the trial court did not abuse its discretion to deny Husband’s

request for findings of fact and conclusions of law, we next address Husband’s argument

that the trial court erred by finding his objections to the Magistrate’s Decision were

untimely filed.

{¶32} Civ.R. 53(D)(3)(b)(i) states, “If a party makes a timely request for findings

of fact and conclusions of law, the time for filing objections begins to run when the

magistrate files a decision that includes findings of fact and conclusions of law.” Husband

contends his time for filing objections began to run on September 8, 2015, when the trial

court denied his request for findings of fact and conclusions of law or, in the alternative,

the time for filing objections began to run after the magistrate filed findings of fact and

conclusions of law after his request was made. In its April 4, 2017 judgment entry, the

trial court reviewed the language of the Civil Rule and found the Rule to be unambiguous

that the time to file objections begins to run when the magistrate files a decision that

includes findings of fact and conclusions of law. On August 27, 2015, the magistrate filed

a decision that included findings of fact and conclusions of law. Husband’s objections

were due on or before September 10, 2015.
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 13

{¶33} Husband makes no argument the August 27, 2015 Magistrate’s Decision

was a general decision and did not contain findings of fact and conclusions of law.

Husband argues the magistrate’s purported findings of fact and conclusions of law were

insufficient to meet Civ.R. 53(D)(3)(a)(ii). However, the plain language of Civ.R.

53(D)(3)(b)(i) does not allow for that distinction. The Rule plainly states if a party requests

findings of fact and conclusions of law, the time to file objections runs when the findings

of fact and conclusions of law are filed. In this case, findings of fact and conclusions of

law were filed on August 27, 2015. It was Husband’s argument the magistrate’s findings

of fact and conclusions of law were insufficient. The trial court found, and we agree, the

findings of fact and conclusions of law were sufficient under Civ.R. 53(D)(3)(a)(ii). The

proper remedy in this case would have been to object to the decision announced by the

magistrate. See Morgan Stanley Credit Corp. v. Fillinger, 2012-Ohio-4295, 704 N.E.2d

362 (8th Dist.). While Husband’s request for findings of fact and conclusions of law was

pending, Husband could have filed objections to the Magistrate’s Decision within the 14-

day period and supplemented those objections after the trial court ruled on Husband’s

pending request for findings of fact and conclusions of law. Husband’s objections to the

Magistrate’s Decision were filed on September 22, 2015, 26 days after the Magistrate’s

Decision was filed and outside the fourteen-day window under Civ.R. 53(D)(3)(b)(i).

{¶34} We find the trial court did not abuse its discretion to deny Husband’s request

for findings of fact and conclusions of law and to find Husband’s objections were untimely

filed. Husband’s first Assignment of Error is overruled.
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 14

II. Plain Error

{¶35} On April 4, 2017, the trial court determined Husband’s objections to the

Magistrate’s Decision were untimely filed. It would not consider the late objections and

the September 11, 2015 judgment entry remained in full force and effect. In Husband’s

first Assignment of Error, we affirmed the trial court’s decision to deny Husband’s request

for findings of fact and conclusions of law and to find Husband’s objections to the

Magistrate’s Decision were untimely filed. Husband argues in his second and third

Assignments of Error that the trial court abused its discretion and committed a reversible

error when it adopted the Magistrate’s Decision as to the property division and support

provisions.

{¶36} Civ.R. 53(D)(3)(b)(iv) provides that “[a] party shall not assign as error on

appeal the court's adoption of any factual findings or legal conclusion * * * unless the party

has objected to that finding or conclusion * * *.” A party’s failure to specifically object to a

magistrate’s decision does not bar appellate review of “plain error.” In re M.H., 5th Dist.

Fairfield No. 2016 CA 43, 2017-Ohio-1100, ¶ 24. Civ.R. 53(D)(3)(b)(iv) further provides:

“Except for a claim of plain error, a party shall not assign as error on appeal the court's

adoption of any factual finding or legal conclusion, whether or not specifically designated

as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has

objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).” The plain error

doctrine, however, is not favored and may be applied only in the extremely rare case

involving exceptional circumstances where error, to which no objection was made at the

trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial

process, thereby challenging the legitimacy of the underlying judicial process itself. King
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 15

v. Cleavenger, 5th Dist. Stark No. 2017CA00008, 2017-Ohio-7973, ¶ 12. To constitute

plain error in a civil case, the error must be “obvious and prejudicial” and “if permitted,

would have a material adverse effect on the character and public confidence in judicial

proceedings.” Friedland v. Djukic, 191 Ohio App.3d 278, 2010–Ohio–5777, ¶ 37 (8th

Dist.). We will herein proceed under a plain error standard of review.

III. Property Division

{¶37} Husband argues the trial court erred as to the property division between

Husband and Wife. He raises five issues with the trial court’s property division: 1) the trial

court’s assignment of $34,359.20 to Husband from the sale of the marital home in the

bankruptcy proceeding; 2) the trial court’s assignment of $1,050.00 to Husband from the

sale of martial property in the bankruptcy proceeding; 3) the categorization of the Sea

Ray Boat as marital property; 4) the trial court’s finding that Wife did not take $18,800.00

in marital funds; and 5) a distributive award to Wife in the amount of $38,369.60 to

equalize the distribution.

{¶38} 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, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). In order to find an abuse

of discretion, we must determine that the trial court's decision was unreasonable,

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶39} Pursuant to R.C. 3105.171(B), “[i]n divorce proceedings, the court shall * *

* determine what constitutes marital property and what constitutes separate property. In
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 16

either case, upon making such a determination, the court shall divide the marital and

separate property equitably between the spouses, in accordance with this section. * * *”

{¶40} R.C. 3105.171(C)(1) further states: “Except as provided in this division or

division (E)(1) of this section, the division of marital property shall be equal. If an equal

division of marital property would be inequitable, the court shall not divide the marital

property equally but instead shall divide it between the spouses in the manner the court

determines equitable. In making a division of marital property, the court shall consider all

relevant factors, including those set forth in division (F) of this section.”

{¶41} To make an equitable division of property, the trial court should first

determine the value of the marital assets. See Eisler v. Eisler, 24 Ohio App.3d 151, 152,

493 N.E.2d 975 (1985). In performing this function, the trial court has broad discretion to

develop some measure of value. See Berish v. Berish, 69 Ohio St.2d 318, 432 N.E.2d

183 (1982). Thus, “[t]he valuation of marital assets is typically a factual issue that is left

to the discretion of the trial court.” Roberts v. Roberts, 10th Dist. Franklin No. 08AP-27,

2008-Ohio-6121, 2008 WL 5049808, ¶ 18 citing Berish, supra. Generally, 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 fact finder could base his or her

judgment. Tennant v. Martin–Auer, 188 Ohio App.3d 768, 2010-Ohio-3489, 936 N.E.2d

1013 (5th Dist.), ¶ 16, citing Cross Truck Equipment Co. v. Joseph A. Jeffries Co., 5th

Dist. Stark No. CA–5758, 1982 WL 2911 (Feb. 10, 1982). “Trial court decisions on what

is presently separate and marital property are not reversed unless there is a showing of

an abuse of discretion.” Valentine v. Valentine, 5th Dist. Ashland No. 95COA01120, 1996
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 17

WL 72608 (Jan. 10, 1996), citing Peck v. Peck, 96 Ohio App.3d 731, 734, 645 N.E.2d

1300 (12th Dist. 1994).

Proceeds from Sale of Marital Home

{¶42} The parties were owners of a marital home mortgaged to Fifth Third Bank.

During the pendency of the divorce proceeding, Husband filed a Chapter 7 bankruptcy

proceeding. The bankruptcy trustee sold the marital home, paid the outstanding

mortgage, and the net proceeds from the sale were approximately $64,609.20. Wife

received $17,500.00, Husband received $12,500.00, and Husband’s bankruptcy estate

received $34,359.20. The $34,359.20 was used by the bankruptcy trustee.

{¶43} In its judgment entry, the trial court assigned $64,359.20 as the value of the

marital home. The trial court then divided the martial asset, awarding Husband

$46,859.20 ($12,500 plus $34,359.20) and Wife $17,500.00.

{¶44} Husband contends the trial court erred in assigning $34,359.20 to him

because those funds were used by the bankruptcy estate to settle marital debt. Husband

did not get the benefit of the funds. Husband states the trial court should have either

excluded $34,359.20 from the marital balance sheet or divided the amount equally

between Husband and Wife.

{¶45} The Bankruptcy Trustee’s Final Report stated the trustee realized gross

receipts in the amount of $460,825.11. (Joint Exhibit 2). Administrative expenses were

paid from the bankruptcy estate in the amount of $43,228.34 and other payments to

creditors were in the amount of $372,282.60. (Joint Exhibit 2). Wife argues there was no

resolution at the trial court as to whether the debts discharged during Husband’s

bankruptcy proceeding were marital or separate debt. In the division of marital assets and
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 18

debt, the trial court assigned all marital debt to Wife. Evidence was presented at trial that

the majority of the debt discharged in bankruptcy belonged to Husband’s creditors. (T.

325).

{¶46} Based on the record, we find no plain error for the trial court to assign

$34,359.20 to Husband. Competent and credible evidence was presented at trial that

Husband gained a benefit from the $34,359.20 during his bankruptcy proceeding. The

trial court then equalized the marital debt and assets by assigning all debt to Wife.

Assignment of $1,050 to Husband

{¶47} Husband argues the trial court abused its discretion when it assigned the

proceeds of the sale by the bankruptcy trustee of two pieces of marital property to

Husband. The bankruptcy trustee sold a leaf pick-up machine and tanning bed for

$1,050.00, which the trial court listed as Husband’s asset.

{¶48} As with the assignment of the proceeds of the marital home, we find there

is no plain error for the trial court to assign $1,050.00 as Husband’s asset in order to make

an equitable division of the marital property. The property items were sold by the

bankruptcy trustee and placed in the bankruptcy estate. The trial court awarded Wife the

proceeds from the sale of a lawnmower in the amount of $1,000.00 and miscellaneous

property in the amount of $280.00.

Sea Ray Boat

{¶49} Husband next contends the trial court erred when it found the Sea Ray Boat

was marital property, not Husband’s separate property. Husband testified he used

inherited funds to purchase the Sea Ray Boat. Wife testified the funds to purchase the
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 19

boat came from marital funds out of a joint account. The Sea Ray Boat was jointly titled

in both Husband’s and Wife’s name.

{¶50} The boat was sold by the bankruptcy trustee for $5,850.00 during

Husband’s bankruptcy proceeding. Husband testified the proceeds were used to pay the

bankruptcy and Wife received approximately half of the proceeds. (T. 138). The trial court

found Husband received $3,057.50 and Wife received $2,792.50.

{¶51} R.C. 3105.171(B) states in pertinent part that “[i]n divorce proceedings, the

court shall * * * determine what constitutes marital property and what constitutes separate

property. * * *.” The characterization of property as marital or separate must be supported

by sufficient, credible evidence. See Chase–Carey v. Carey, 5th Dist. Coshocton No.

99CA1, 1999 WL 770172. The party to a divorce action seeking to establish that an asset

or portion of an asset is separate property, rather than marital property, has the burden

of proof by a preponderance of the evidence. Passyalia v. Moneir, 5th Dist. Stark No.

2016 CA 00182, 2017-Ohio-7033, ¶ 18 citing Cooper v. Cooper, 5th Dist. Licking No. 14

CA 100, 2015-Ohio-4048, ¶ 45, citing Zeefe v. Zeefe, 125 Ohio App.3d 600, 614, 709

N.E.2d 208 (1998).

{¶52} In this case, the trial court found Husband did not establish by a

preponderance of the evidence that the Sea Ray Boat was separate property. Husband

testified the boat was purchased with separate funds; Wife testified the boat was

purchased with marital funds. The Sea Ray Boat was titled in both parties’ names and

Husband testified Wife was given approximately half of the proceeds after the sale of the

boat by the bankruptcy trustee. We find no plain error for the trial court to designate the

Sea Ray Boat as marital property.
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 20

Wife Took $18,800 in Anticipation of Divorce

{¶53} Husband next claims the trial court did not consider the evidence and failed

to find that Wife received $18,800.00 in cash from marital funds. Husband contends the

trial court should have distributed $18,800.00 to Wife as a marital asset.

{¶54} At trial, W. Dana Lavelle, a certified public accountant, testified on behalf of

Husband. Mr. Lavelle conducted an examination of the parties’ finances. Mr. Lavelle

testified that it appeared from the parties’ financial records and information from Husband

that Wife took $18,800.00 in marital funds in anticipation of divorce. Wife testified she

used the funds to pay the mortgage on the marital home, marital bills, and expenses for

the children.

{¶55} The trial court found the evidence presented did not sustain Husband’s

allegation that Wife took $18,800.00 in marital funds. It is generally recognized that the

trier of fact is in a far better position to observe the witnesses' demeanor and weigh their

credibility. Passyalia v. Moneir, 5th Dist. Stark No. 2016 CA 00182, 2017-Ohio-7033, ¶

23 citing Taralla v. Taralla, 5th Dist. Tuscarawas No. 2005 AP 02 0018, 2005-Ohio-6767,

¶ 31. We do not find this to be an exceptional circumstance where there is plain error by

the trial court. The trial court considered the parties’ testimony and found Wife to be more

credible.

Distributive Award

{¶56} Husband finally argues the trial court erred in awarding Wife a distributive

award in the amount of $38,369.60 to equalize the distribution of marital assets and debts.

{¶57} R.C. 3105.171(A)(1) defines a “distributive award” as: “any payment or

payments, in real or personal property, that are payable in a lump sum or over time, in
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 21

fixed amounts, that are made from separate property or income, and that are not made

from marital property and do not constitute payments of spousal support, as defined in

section 3105.18 of the Revised Code.” “The court may make a distributive award to

facilitate, effectuate, or supplement a division of marital property. * * *” R.C.

3105.171(E)(1).

{¶58} Having found the trial court divided the marital assets and debts equitably,

we find the trial court did not abuse its discretion when it made a distributive award to

effectuate the division of marital property.

{¶59} Husband’s second Assignment of Error is overruled.

IV. Spousal and Child Support

{¶60} Husband raises three arguments in his third Assignment of Error. First, he

contends the trial court abused its discretion when it imputed income to Husband in the

amount of $49,945.00 for spousal and child support purposes. Second, he states the trial

court erred by failing to include Wife’s spousal support on the child support computation

worksheet. Third, Husband argues his spousal support obligation is too high.

Spousal Support

{¶61} The trial court ordered Husband to pay Wife spousal support in the amount

of $750.00 per month for a period of eight years. This equates to $9,000.00 per year or a

total amount of $72,000.00.

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

constitutes an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d

83 (1990). 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
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 22

v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). R.C. 3105.18(C)(1)(a) through

(n) sets forth the factors a trial court is to consider in determining whether spousal support

is appropriate and reasonable, and in determining the nature, amount, terms of payment,

and duration of spousal support:

(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:

(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;
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 23

(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.

{¶63} Trial courts must consider all the factors listed in R.C. 3105.18(C). This

court has previously held that a trial court need not acknowledge all evidence relative to

each and every factor listed in R.C. 3105.18(C), and we may not assume that the

evidence was not considered. Hutta v. Hutta, 177 Ohio App.3d 414, 2008–Ohio–3756,

894 N.E.2d 1282, ¶ 27 (5th Dist.), citing Clendening v. Clendening, 5th Dist. Stark

No.2005CA00086, 2005–Ohio–6298, ¶ 16, citing Barron v. Barron, 5th Dist. Stark

No.2002CA00239, 2003–Ohio–649. The trial court need set forth only sufficient detail to

enable a reviewing court to determine the appropriateness of the award. Id., citing

Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988).

{¶64} This Court has held that in determining spousal support, a trial court may,

in its discretion, impute income to a party based on the party's earning ability under R.C.
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 24

3105.18(C)(1)(a) and (b) even if it is determined that a party has no income, depending

on the facts and circumstances of each case. Snyder v. Synder, 5th Dist. Stark No.

2008CA00219, 2009–Ohio–5292, ¶ 30.

{¶65} R.C. 3105.18(C) does not specifically direct the trial court to impute income

to a party who is voluntarily unemployed when determining spousal support as does the

child support statute, R.C. 3119.01(C)(11)(a). Katchmar v. Katchmar, 5th Dist. Fairfield

No. 16-CA-36, 2017-Ohio-2974, ¶ 27 citing Basista v. Basista, 6th Dist. Wood No. WD–

14–076, 2016–Ohio–146, ¶ 17. R.C. 3105.18(C)(1), however, requires the trial court

consider, among other factors, a party's earning capacity, education, mental and

emotional conditions, and ability to seek employment outside the home before

determining what amount of spousal support would be appropriate and reasonable. Id.

citing Collins v. Collins, 9th Dist. Wayne No. 10CA0004, 2011–Ohio–2087, ¶ 46.

{¶66} At the time of the trial, Husband was 51 years old. Husband was employed

at Angelo’s Pizza, a restaurant owned by his brother, as a dining room manager earning

$20 per hour or $41,600 per year. He attended Ohio State University for two years.

Husband has been employed as a fast food cook, construction superintendent, building

equipment and supply sales representative, and food service manager. A vocational

expert testified Husband’s earning capacity was between $49,945 and $60,278.

{¶67} The magistrate reviewed Husband’s reported wages from 2009 to 2013. In

2009, Husband earned $56,994. In 2010, Husband reported earning $8,028 plus

unemployment compensation in the amount of $22,711. In 2011, Husband reported on a

credit application that his gross income was $5,800.00 per month ($69,600.00 per year).

He reported on his taxes that he earned $36,359.00. In 2012, his wages were $42,129.00.
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 25

Husband reported no wages for 2013, but reported business income in the amount of

$2,850.00.

{¶68} We find the trial court’s determination of Husband’s earning capacity as

$49,945.00 was not an abuse of discretion considering the evidence presented at trial.

Husband was currently earning $41,600.00 per year. In the past, Husband had earned

over $50,000.00 and possibly over $60,000.00. The amount of imputed income is

$8,345.00 above Husband’s current reported salary. We find no exceptional

circumstances to support the finding of a plain error as to the imputation of income.

{¶69} We further find the trial court did not abuse its discretion in determining the

equitable amount of spousal support based on the evidence presented. See Kunkle v.

Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990).

Child Support

{¶70} In Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989), the Ohio

Supreme Court determined that the abuse of discretion standard is the appropriate

standard of review in matters concerning child support.

{¶71} The statutory child support computation worksheet includes space for the

assessment of each parent's income, which is defined, for a parent who is unemployed

or underemployed, as “the sum of the gross income of the parent and any potential

income of the parent.” R.C. 3119.01(C)(5)(b). “In deciding if an individual is voluntarily

under employed or unemployed, the court must determine not only whether the change

was voluntary, but also whether it was made with due regard to obligor's income-

producing abilities and his or her duty to provide for the continuing needs of the child.”

Weisgarber v. Weisgarber, 5th Dist. Stark No.2015CA00158, 2016–Ohio–676, ¶ 25
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 26

quoting Farrell v. Farrell, 5th Dist. Licking No.2008–CA–0080, 2009–Ohio–1341, ¶ 20.

The decision to impute income to a parent is within the trial court's sound discretion. Id.

citing Rock v. Cabral, 67 Ohio St.3d 108 (1993); Blakemore.

{¶72} Based on our finding as to the imputation of income for spousal support, we

likewise find no plain error to impute income to Husband in order to determine Husband’s

child support obligation.

Spousal Support Income to Wife for Child Support Calculation

{¶73} Husband contends in his final argument that the trial court abused its

discretion when it failed to include Husband’s court-ordered spousal support obligation to

Wife as income to Wife on the child support computation worksheet. The trial court

included Husband’s spousal support obligation as a deduction to Husband’s income for

purposes of computing child support. We agree with Husband’s argument.

{¶74} R.C. 3119.022 sets forth a basic child support computation worksheet to be

used in calculating the amount of child support to be paid pursuant to a child support

order. R.C. 3119.01(C)(7) provides:

“Gross income” means, except as excluded in division (C)(7) of this section,

the total of all earned and unearned income from all sources during a

calendar year, whether or not the income is taxable, and includes income

from salaries, wages, overtime pay, and bonuses to the extent described

in division (D) of section 3119.05 of the Revised Code; commissions;

royalties; tips; rents; dividends; severance pay; pensions; interest; trust

income; annuities; social security benefits, including retirement, disability,

and survivor benefits that are not means-tested; workers' compensation
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 27

benefits; unemployment insurance benefits; disability insurance benefits;

benefits that are not means-tested and that are received by and in the

possession of the veteran who is the beneficiary for any service-connected

disability under a program or law administered by the United States

department of veterans' affairs or veterans' administration; spousal support

actually received; and all other sources of income. * * *.

(Emphasis added.)

{¶75} In Worley v. Worley, 5th Dist. Licking No. 06-CA-63, 2007-Ohio-252, this

Court reviewed an appeal where the trial court failed to subtract spousal support from the

appellant/obligor’s income and include the spousal support in the appellee/obligee’s

income on the child support computation worksheet. We held:

[W]e agree with the reasoning of the Second District Court of

Appeals, which stated:

“We conclude that in enacting R.C. Chapter 3119, the General

Assembly has codified the common sense notion that in determining the

relative income of the parents, spousal support paid from one parent to the

other should be included in the obligee's income, and excluded from the

obligor's income.” Posadny v. Posadny (Feb. 22, 2002), 2nd Dist. No.

18906.”

Pursuant to R.C. 3119.02, the trial court should have subtracted the

spousal support award from appellant's income when calculating his child

support obligation. Likewise, the spousal support award should have been

included in the calculation of appellee's gross income, pursuant to R.C.
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 28

3119.07(C)(7). Pelger v. Pelger (Nov. 14, 2005) Stark App.

No.2005CA00075. We recognize the statute uses the language “actually

received” and “actually paid” but conclude child support calculations should

include those amounts ordered and anticipated to be paid in the instant,

subject order. * * * To hold otherwise would result in additional proceedings

for modification based on the obligor's compliance with the instant, subject

order. In the event of noncompliance, contempt of court or modification

upward may provide the appropriate remedy.

Id. at ¶ 25-27.

{¶76} We agree with Husband the trial court committed a plain error as to the

calculation of Wife’s gross income when the trial court failed to include spousal support

on the child support computation worksheet. Husband’s third Assignment of Error is

overruled in part and sustained in part. We remand the matter to the trial court for a

redetermination of Husband’s child support obligation.
Delaware County, Case Nos. 15 CAF 10 0076 & 17 CAF 05 0029 29

CONCLUSION

{¶77} Based upon the foregoing, Husband’s first and second Assignments of

Error are overruled. Husband’s third Assignment of Error is overruled in part and

sustained in part. We remand the matter to the trial court for a redetermination of

Husband’s child support obligation.

By: Delaney, J.,

Wise, John, P.J. and

Baldwin, J., concur.