Buck v. Buck

[Cite as Buck v. Buck, 2018-Ohio-3704.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY

Mark S. Buck Court of Appeals No. F-17-012

Appellee/Cross-Appellant Trial Court No. 15DV000181

v.

Janet Yackee Buck DECISION AND JUDGMENT

Appellant/Cross-Appellee Decided: September 14, 2018

*****

Charles M. Saunders and Gregory L. VanGunten, for appellee/
cross-appellant

Colin J. McQuade, for appellant/cross-appellee.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Fulton County Court of Common

Pleas which granted the parties a divorce and determined the marital property

classification, the division of marital property, spousal support, and attorney fees. For the

reasons set forth below, this court affirms the judgment of the trial court.
 {¶ 2} On November 25, 2015, appellee/cross-appellant Mark S. Buck (hereafter

plaintiff or “Mr. Buck”) filed a complaint for divorce against appellant/cross-appellee

Janet Yackee Buck (hereafter defendant or “Mrs. Buck”) after over 30 years of marriage.

The parties were married on August 31, 1985, and separated in late November 2012.

Following a period of discovery and mediation, a final hearing was held on July 18, 2016.

On August 19, 2016, the parties filed post-hearing “final arguments” along with a total of

38 joint stipulations and agreements. Unresolved and contested divorce matters were

decided by the magistrate on March 20, 2017, who recommended “Plaintiff should be

granted an absolute Divorce from Defendant, and that the Parties are released from the

obligations of that marriage except as identified below.” Each party filed objections to

the magistrate’s decision, and as journalized on December 18, 2017, the trial court filed a

decision and judgment entry overruling the objections and granting the divorce due to

incompatibility.

{¶ 3} Mrs. Buck sets forth four assignments of error:

I. The trial court erred when it stated a “de nova review” of the

magistrate’s analysis of the [$3,000.00] monthly gifts from appellant’s mother

when no such analysis took place.

II. The [trial] court erred when it blended the issues of division of

marital property and spousal support.

III. The trial court erred when it inequitably divided the marital

accounts 65% to appellee and 35% to appellant and is an abuse of discretion.

2.
 IV. The trial court erred when it limited appellant’s attorney fee

award to $5,000.00 and [is] an abuse of discretion.

{¶ 4} Mr. Buck sets forth three assignments of error in his cross-appeal:

I. As a matter of law, the trial court erred concerning its application

of the [parol] evidence rule to the parties’ settlement agreement and its

interpretation of [its] integration clause.

II. The trial court erred by finding that the money remaining in the

parties’ managed account was “marital” property and divided it 65% to Mr. Buck

and 35% to Mrs. Buck.

III. The trial court’s decision to award Mrs. Buck attorney fees is

against the manifest weight of the evidence, not supported by equity, and contrary

to law.

{¶ 5} We will address the assignments of error out of order.

A. Marital Property Determination

{¶ 6} Both parties argue the trial court erred when it determined what constituted

marital property. Neither party disputes in a divorce proceeding the trial court is required

to determine what constitutes marital property and separate property. R.C. 3105.171(B).

{¶ 7} “Marital property” is not “separate property.” R.C. 3105.171(A)(3)(b).

Rather, “marital property” includes:

All real and personal property that currently is owned by either or

both of the spouses, including, but not limited to, the retirement benefits of

3.
 the spouses, and that was acquired by either or both of the spouses during

the marriage.

R.C. 3105.171(A)(3)(a)(i).

{¶ 8} In contrast, “separate property” is defined as “all real and personal property

and any interest in real or personal property that is found by the court to be any of the

following,” including:

Compensation to a spouse for the spouse’s personal injury, except

for loss of marital earnings and compensation for expenses paid from

marital assets [R.C. 3105.171(A)(6)(a)(vi); or] Any gift of any real or

personal property or of an interest in real or personal property that is made

after the date of the marriage and that is proven by clear and convincing

evidence to have been given to only one spouse [R.C.

3105.171(A)(6)(a)(vii)].

Moreover, “[t]he commingling of separate property with other property of any

type does not destroy the identity of the separate property as separate property,

except when the separate property is not traceable.” R.C. 3105.171(A)(6)(b).

{¶ 9} We review a trial court’s factual findings on the classification of marital and

separate property pursuant to R.C. 3105.171 under a manifest weight of the evidence

standard. Okos v. Okos, 137 Ohio App.3d 563, 569, 739 N.E.2d 368 (6th Dist.2000),

citing Barkley v. Barkley, 119 Ohio App.3d 155, 159, 694 N.E.2d 989 (4th Dist.1997).

Consequently, we will not reverse the trial court’s decision if it is supported by some

4.
competent and credible evidence. Hook v. Hook, 189 Ohio App.3d 440, 2010-Ohio-

4165, 938 N.E.2d 1094, ¶ 18 (6th Dist.), citing Schober v. Schober, 6th Dist. Ottawa No.

OT-08-061, 2009-Ohio-4408, ¶ 27.

{¶ 10} Overcoming the presumption pursuant to R.C. 3105.171(A)(3)(a) that

property acquired during the marriage is marital property requires “clear and convincing

evidence,” meaning “that degree of proof which will provide in the mind of the trier of

fact a firm belief or conviction as to the facts sought to be established.” Hook at ¶ 19,

quoting Barkley at 168. “Clear and convincing evidence” is more than a mere

preponderance of the evidence but less than the certainty required for “beyond a

reasonable doubt” in criminal cases. State ex rel. Cincinnati Enquirer v. Deters, 148

Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 19, citing Cross v. Ledford, 161

Ohio St. 469, 471, 120 N.E.2d 118 (1954), paragraph three of the syllabus. We will not

reweigh the evidence introduced to the trial court; rather, we will uphold the findings of

the trial court if the record contains some competent, credible evidence to support the

trial court’s conclusions. Fletcher v. Fletcher, 68 Ohio St.3d 464, 468, 628 N.E.2d 1343

(1994), citing Ross v. Ross, 64 Ohio St.2d 203, 204, 414 N.E.2d 426 (1980).

{¶ 11} Mr. Buck, a construction worker, was injured as a result of a crane collapse

accident on February 16, 2004, that occurred during the construction of the “Veteran’s

Bridge” in Toledo. Thereafter, the parties entered into a “Confidential Settlement

Agreement” with Mr. Buck’s employer that resulted in a settlement award payment. The

record contains the settlement agreement dated January 21, 2005, which the parties

5.
entered into during their marriage. After various deductions the net of $692,592.40 was

paid “to Mark S. Buck and Janet Yackee Buck JTWROS (Joint Tenants with Right to

Survivorship)” into an account at Smith Barney.

{¶ 12} The record refers to the original account into which the net settlement

award was deposited as the “settlement account,” and, later, the “joint money market

account” or “joint money market checking account.” In late 2005, the parties agreed to

open with Smith Barney a new, joint, professionally managed account (also titled “Mark

S. Buck and Janet Yackee Buck JTWROS”) “with more long-term investments” and

withdrew $300,000 from the “joint money market account” and deposited that sum into

the professionally managed account. The record refers to this second account into which

approximately one-half of the net settlement award was deposited as the “managed

account” or “joint managed account.” Later, the parties transferred the “joint money

market account” from Smith Barney to Morgan Stanley (identified in the record as

account No. ending 1965), and they also transferred the “managed account” from Smith

Barney to Morgan Stanley (identified in the record as account No. ending 2336).

{¶ 13} The parties received the settlement award after they jointly signed the

settlement agreement, which broadly describes the release of claims by both parties as

including:

any and all past, present and future claims, and potential claims,

demands, damages, actions * * * losses, * * * and causes of action of

whatsoever kind or nature, whether known or unknown, which are now

6.
 existing or might arise in the future, specifically including claims of * * *

survivorship, loss of consortium, loss of services, medical expenses, * * *

lost wages, lost earning capacity * * * and other expenses or damages,

incurred or to be incurred, known or unknown, which arise out of or are

related in any way to the February 16, 2004 accident * * * and BUCK’s

employment with FCC.

{¶ 14} The magistrate found the settlement agreement contained no dollar amount

for each individual type of claim that was resolved, and, other than pointing to paragraph

two of the settlement agreement, Mr. Buck “did not present any evidence whatsoever” to

trace the settlement award entirely to “Plaintiff’s medical expenses, future medical

expenses, loss of income, or future lost wages” to the exclusion of Mrs. Buck’s “claim of

loss of consortium, [and] loss of services.” The record contained testimony that after the

accident Mrs. Buck, a registered nurse, became Mr. Buck’s full-time nurse at home,

eliminating the need for Mr. Buck “to hire any outside nursing assistants to care for [his]

physical injuries.” The record also contained testimony that Mrs. Buck continued to stay

at home even after their child became a teenager, and that Mr. Buck did not work again in

construction, although he started a snow plow business.

{¶ 15} In the trial court’s December 18, 2017 judgment entry, the trial court

agreed with the magistrate’s analysis and determined the settlement award was made as a

settlement to the parties “listed as a single party to the contract” (emphasis sic) and

“consisted of claims for personal injuries (non-marital property) and lost income,

7.
companionship, etc. (marital property).” The trial court concluded “the Magistrate

correctly determined the Morgan Stanley account to be a marital asset.” The trial court

previously explained the “Morgan Stanley account” was the former Smith Barney

“settlement account” into which the parties’ were paid the original net settlement award.

{¶ 16} In support of his first and second assignments of error, Mr. Buck argues

paragraph two of the settlement agreement is clear that the entire settlement award is his

separate property solely for his “physical injuries and illness” pursuant to R.C.

3105.171(A)(6)(a)(vi), and Mrs. Buck “did not dispute the actual tracing of the settlement

money back to the Settlement Agreement.” In addition, he argues:

Stipulation #17 of the parties acknowledged that “(n)o ‘marital

funds’ were deposited into this managed account in the following years

thereafter right up to the present.” Here, there was no “transmutation” of

the settlement funds into other marital assets, and no co-mingling of other

marital assets with the settlement account. The tracing here is untainted

and documented back to the settlement release. * * * Here, the tracing is

very simple and unaltered.

{¶ 17} The parties to the settlement agreement are Mr. Buck, Mrs. Buck and

Fru-Con Construction Corporation, Mr. Buck’s employer on the date of the accident.

Paragraph two of the settlement agreement states, “Per communication from Bucks’

counsel” the check was “made payable to ‘Mark and Janet Buck, and Eastman & Smith,

Ltd., their attorneys.’” That settlement award “constitute[s] damages on account of

8.
physical injuries or illness, within the meaning of Section 104(a)(2) of the Internal

Revenue Code of 1986, as amended, and are paid to fully end all possible litigation by

and between [Mark Buck and Janet Buck] and [Fru-Con Construction Corporation].” We

are unpersuaded by Mr. Buck’s argument because the express language of paragraph two

of the settlement agreement used the phrase “physical injuries or illness” solely to be

defined for the purpose of IRS income tax consequences of the settlement award, which

is not an issue appealed by either party.

{¶ 18} Mr. Buck further argues Mrs. Buck testified in her deposition she did not

suffer physical injuries or illness as a result of Mr. Buck’s accident. Mr. Buck believed

since he meet his burden by a preponderance of the evidence to trace the “marital funds”

to his separate property for personal injury, the burden then shifted to Mrs. Buck “to

produce the evidence to back up [her marital property] claims.” We are unpersuaded Mr.

Buck met his burden by clear and convincing evidence to overcome the marital property

presumption because the settlement award was acquired by both spouses during the

marriage. It is undisputed both parties signed the settlement agreement during their

marriage that resulted in the settlement award being deposited as a lump sum into a joint

money market account with a right of survivorship for full access by both parties. R.C.

3105.171(A)(2)(a). We find paragraph two of the settlement agreement alone did not

satisfy the requirements under R.C. 3105.171(A)(6)(a)(vi). We find the comingling of

both parties’ claims in the lump sum settlement award is not traceable to Mr. Buck’s

exclusive separate property. R.C. 3105.171(A)(6)(b). We find the record also contains

9.
some evidence Mrs. Buck received a later diagnosis of depression that was considered a

result of Mr. Buck’s accident and her full-time care for him.

{¶ 19} The record also shows Mrs. Buck testified at the July 18, 2016 hearing that

although both parties had equal control over the two settlement award accounts, she was

the one responsible for handling the family’s finances.

It was always family money from the beginning. It was both of ours.

* * * It was just assumed that it was our money. We used it to live on. We

used it for our family. * * * Because it was always in both of our names.

We used it to live off of. I used that money to pay all our bills for ten

years.

{¶ 20} Mr. Buck further argues the trial court improperly considered “Defendant’s

Exhibit A” as “supplemental evidence of what the settlement really encompassed.”

(Emphasis sic.) The result is “the odd proposition that some signatories to contracts are

bound by the [Parol] Evidence Rule while others are not.” Mr. Buck argues the trial

court erred as a matter of law applying the parol evidence rule to the settlement

agreement, specifically the integration clause, because the rule “forbids such testimonial

evidence [by Mr. Buck on cross-examination about his ‘understanding’ of the settlement

agreement] in contradiction of the terms of the release itself.”

{¶ 21} Mr. Buck testified at the final hearing that although he viewed the

settlement award as entirely to take care of him “years down the road if I have

complications of whatever reason because of the [thirteen percent permanent foot]

10.
disability that I have,” he acknowledged the settlement award was split partly “to

accommodate and help us pay bills since I couldn’t generate money to pay” and partly

“into a fund to be able to build wealth for later on in my years when I was more so not

going to be able to take care of myself and possibly have to buy it for myself.” Mr. Buck

admitted placing the settlement award in a joint account “was a matter of convenience to

put it in both of our names” so that bills could get paid. Mr. Buck further testified that

although his “plan was never for the family to live off the settlement account,” he

admitted, “That is the way it turned out * * * because my wife refused to go back to

work.” It is undisputed the record shows neither party worked, and they both lived off

the “settlement account.”

{¶ 22} We find Mr. Buck’s reliance on the parol evidence rule and on paragraph

17 of the stipulations to be misplaced as the trial court found some competent and

credible evidence in the settlement agreement and the stipulations, outside of the disputed

defendant’s exhibit A, to support finding the settlement award was marital property. The

trial court agreed with Mr. Buck regarding the parol evidence rule as applied to the

settlement agreement, but still disagreed with Mr. Buck the settlement award was not

marital property.

{¶ 23} According to the trial court, “There is no way to determine the source of

the dollars which were paid to support the Parties’ ongoing expenses and sometimes

exorbitant lifestyle.” We will not disturb the trial court’s finding the settlement award

was marital property from all of the evidence in the record. The trial court also found

11.
approximately half of the net settlement award ($300,000 out of $692,592.40) funded the

“managed account” and the rest remained in the “joint money market account.” We find

paragraph 17 regarding the “managed account” is consistent with the trial court’s finding

the settlement award was marital property. Mr. Buck testified at the July 18, 2016

hearing “what is in the managed account now at Morgan Stanley is directly traceable all

the way to the settlement.” The record shows the “managed account” was a passive

investment account and earned interest and dividends that were reinvested into the

$300,000 deposit from the net settlement award. Paragraph 24 of the stipulations states

as of December 31, 2012, the “managed account” contained $327,473.75, and by July 12,

2016, the “managed account” contained $390,336.12.

{¶ 24} We find the trial court’s determination the “settlement account,” which

resulted in the “joint money market account” and the “managed account,” was marital

property was not against the manifest weight of the evidence because its determination

was supported by some competent and credible evidence in the record.

{¶ 25} Mr. Buck’s first and second assignments of error are not well-taken.

{¶ 26} Mrs. Buck’s first assignment of error challenging the classification of her

mother’s cash gifts as marital property mirrors her objection Nos. 2, 3 and 5 timely filed

April 20, 2017, in response to the magistrate’s March 20, 2017 decision. Mrs. Buck

argues the trial court failed to conduct a de novo review of the magistrate’s determination

the $3,000 monthly gifts were marital property because the balance in the “joint money

market checking account” can be directly traced to the gifts from mother to daughter.

12.
 {¶ 27} We find paragraphs 17, 21, 30, 35, and 36 of the August 19, 2016

stipulations directly relate to the cash gifts from Mrs. Buck’s mother during the parties’

marriage. These cash gifts either were directly deposited into the “joint money market

account,” totaling $392,000 (of which $267,000 derived from $3,000 monthly gifts), or

directly paid on joint credit card debt, totaling $49,975.08. According to paragraphs 19

and 24 of the stipulations, the parties paid all their obligations and living expenses by

withdrawals from the “joint money market account,” and at the time of filing of divorce

the account balance was “approximately $6,678.27.” The issue of credit card debt was

not appealed.

{¶ 28} Where a party timely files objections to a magistrate’s decision the trial

court is required to rule on the objections after “an independent review as to the objected

matters to ascertain that the magistrate has properly determined the factual issues and

appropriately applied the law.” Civ.R. 53(D)(4)(d). This “independent review” is the

equivalent of a de novo determination. Barker v. Barker, 6th Dist. Lucas No. L-00-1346,

2001 Ohio App. LEXIS 2012, *9 (May 4, 2001), citing DeSantis v. Soller, 70 Ohio

App.3d 226, 232, 590 N.E.2d 886 (10th Dist.1990).

{¶ 29} According to the trial court’s December 18, 2017 judgment entry, the trial

court analyzed Mrs. Buck’s objection Nos. 2, 3 and 5 as follows:

Neither of these Parties worked. They chose instead to live off the

proceeds of the personal injury settlement and the largess of Defendant’s

mother. They lived well beyond their means. Defendant’s mother made

13.
 $3000.00 a month available to Defendant each month. The Defendant

deposited the $3000 monthly transfers from her mother (who was in a

nursing home) into a joint account where the sums were co-mingled with

the funds from the personal injury settlement. There is no way to determine

the source of the dollars which were paid to support the Parties’ ongoing

expenses and sometimes exorbitant lifestyle. If the Defendant objected to

the use of these funds, she could have chosen to have the $3000 transfers

from her mother terminated at any point in time; or placed * * * the funds

in a separate account completely under her control. She did not. * * * Both

of these Parties deposited their money into a common fund which was

utilized by both Parties for their personal benefit. That is the simple truth

which cannot be ignored – and which this Court will not ignore. The Court

reviewed the Magistrate’s analysis of the Court’s treatment of the $3000

monthly transfers. A de novo review indicates that the Magistrate was

correct in his analysis. As a result, Defendant’s * * * Objections are

overruled and DENIED. (Emphasis sic.)

{¶ 30} We find the trial court conducted a de novo review of the objections and

found some competent and credible evidence in the record to support denying the

objections and finding the cash gifts deposited from Mrs. Buck’s mother into the “joint

money market account” during the marriage were marital property. The trial court’s

14.
determination these gifts were marital property was not against the manifest weight of the

evidence.

{¶ 31} Mrs. Buck’s first assignment of error is not well-taken.

B. Marital Property Division

{¶ 32} Both parties argue the trial court abused its discretion when it divided their

marital property. Mrs. Buck argues in her third assignment of error, and Mr. Buck

further argues in his second assignment of error, the trial court abused its discretion when

it inequitably divided the marital property 65 percent to Mr. Buck and 35 percent to Mrs.

Buck. Mrs. Buck argues “the division is speculative and contrary to the findings of the

Magistrate and applicable case law” because her mother’s gifts into the “joint money

market account” totaling $267,000 should be credited in Mrs. Buck’s favor where Mr.

Buck admits that without such support, “they would have substantially drained all of the

accounts from his injury.” Mr. Buck separately argues the trial court “engaged in mere

speculation in its allocation of the managed account.”

{¶ 33} In a divorce proceeding the trial court is required to divide the marital and

separate property equitably between the spouses. R.C. 3105.171(B). “Trial courts are

vested with broad discretion in determining the appropriate scope of these property

awards.” Everhardt v. Everhardt, 6th Dist. Lucas No. L-86-060, 1987 Ohio App. LEXIS

5892, *5 (Feb. 6, 1987), citing Berish v. Berish, 69 Ohio St.2d 318, 319, 432 N.E.2d 183

(1982).

15.
 {¶ 34} The statute for division of marital property states, in part:

Except as provided in this division * * *, 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.

R.C. 3105.171(C)(1). The ten factors the trial court must consider when “making a

division of marital property and in determining whether to make and the amount of any

distributive award” are listed in R.C. 3101.171(F):

(1) The duration of the marriage;

(2) The assets and liabilities of the spouses;

(3) The desirability of awarding the family home, or the right to

reside in the family home for reasonable periods of time, to the spouse with

custody of the children of the marriage;

(4) The liquidity of the property to be distributed;

(5) The economic desirability of retaining intact an asset or an

interest in an asset;

(6) The tax consequences of the property division upon the

respective awards to be made to each spouse;

16.
 (7) The costs of sale, if it is necessary that an asset be sold to

effectuate an equitable distribution of property;

(8) Any division or disbursement of property made in a separation

agreement that was voluntarily entered into by the spouses;

(9) Any retirement benefits of the spouses, excluding the social

security benefits of a spouse except as may be relevant for purposes of

dividing a public pension;

(10) Any other factor that the court expressly finds to be relevant

and equitable.

{¶ 35} We review the trial court’s division of marital and separate property for an

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

citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989). 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, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980). “An unequal property division does not, standing alone, amount

to an abuse of discretion.” Enriquez v. Enriquez, 6th Dist. Lucas No. L-94-252, 1995

Ohio App. LEXIS 5362, *18 (Dec. 8, 1995), citing Cherry v. Cherry, 66 Ohio St.2d 348,

352, 421 N.E.2d 1293 (1981), paragraph two of the syllabus.

{¶ 36} After determining the “settlement account,” which resulted in the “joint

money market account” and the “managed account,” was marital property, the magistrate

17.
then reasoned, and the trial court agreed, that an absolutely equal division of the marital

funds pursuant to R.C. 3105.171(C)(1) and (F) “would be inequitable to [Mr. Buck].”

The magistrate further reasoned, “While it is true he certainly combined the funds in such

a way as it is impossible to say what funds were separate and what funds were marital

property, it is also true that these funds were as a result of injuries that he sustained.” The

magistrate cited as support Mr. Buck’s limited employment prospects as “unlikely that he

will ever have substantial earnings in the future” and Mrs. Buck’s “maintaining her

nursing license, and most likely could enter back into the work force for a period of

time.” The magistrate then determined the equitable division of the “marital fund” would

be 65 percent to Mr. Buck and 35 percent to Mrs. Buck. The trial court determined, after

independently reviewing R.C. 3105.171(C)(1) and (F), “the Magistrate properly

considered those provisions and concurs with the analysis provided with the Magistrate’s

Decision.”

{¶ 37} The record also contains the trial court’s judgment entry of “Temporary

Orders,” journalized January 13, 2016, in which the parties agreed on joint access to, and

withdrawals from, the “managed account” after the divorce filing. The parties agreed,

and the trial court ordered, those “withdrawals shall be credited as an adjustment to

whatever sums the court may grant each party at final hearing.” Upon determining the 65

percent to 35 percent division of the net settlement award, the trial court then determined

in its December 18, 2017 judgment entry that for the period from December 1, 2015, to

March 1, 2017, each party received $48,000 from the “managed account” according to

18.
the temporary orders. The trial court then granted to Mr. Buck a 65 percent credit for his

share of the $48,000 received from the “managed account” and to Mrs. Buck a 35 percent

credit for her share of the $48,000 received. We find the trial court’s determination of the

credits from the “managed account” withdrawals to the parties’ final property division

determination was in accordance with the parties’ request.

{¶ 38} We reviewed the entire record and do not find the court’s attitude was

unreasonable, arbitrary or unconscionable in its evaluation of R.C. 3105.171(C)(1) and

(F) before determining the division of the parties’ marital property. In particular, we find

it was within the trial court’s discretion to consider “[a]ny other factor that the court

expressly finds to be relevant and equitable” when making a division of marital property

under 3105.171(F)(10). We find the trial court did not abuse its discretion when it denied

the objections and divided the marital property 65 percent to Mr. Buck and 35 percent to

Mrs. Buck.

{¶ 39} Mrs. Buck’s third assignment of error and Mr. Buck’s second assignment

of error are not well-taken.

C. Spousal Support

{¶ 40} Mrs. Buck argues in her second assignment of error the trial court

committed “clear error” when the trial court “inferred” jurisdiction to determine the

parties’ spousal support stipulation and determined the relative earning capacities of the

parties. In doing so, Mrs. Buck argues the trial court abused its discretion when it

blended the issues of division of marital property and spousal support.

19.
 {¶ 41} We review the trial court’s determination of spousal support for an abuse of

discretion. Kunkle, 51 Ohio St.3d at 67, 554 N.E.2d 83. The trial court has discretion to

award spousal support to either party only after the trial court determines division of

marital property pursuant to R.C. 3105.171 and “upon the request of either party” in

divorce proceedings. R.C. 3105.18(B). The trial court’s December 18, 2017 judgment

entry ordered, “Neither Party shall pay or receive any spousal support in this matter. The

Court shall not retain jurisdiction over this issue.” As previously shown, the trial court

incorporated the stipulations and agreements of the parties filed on August 19, 2016.

Paragraph 6 of the stipulations states, “Neither party shall pay nor receive any spousal

support and the court does not reserve jurisdiction in this matter.” We find the trial court

order mirrored what the parties previously stipulated.

{¶ 42} We find the trial court did not abuse its discretion when it denied the

objections and ordered neither party shall pay or receive spousal support.

{¶ 43} Mrs. Buck’s second assignment of error is not well-taken.

D. Attorney Fee Award

{¶ 44} Both parties argue the trial court erred when it awarded attorney fees to

Mrs. Buck. Mrs. Buck argues in her fourth assignment of error the trial court abused its

discretion when it limited her attorney fee award to $5,000. In support, Mrs. Buck argues

her evidence of attorney fees reflects two years of litigation “largely to address appellee’s

continuing contention that the ‘managed’ account funds are all his.” Mrs. Buck further

20.
argues she and her attorney “spent countless hours reconstructing the financial history of

the parties, and most of appellee’s exhibits were prepared by appellant.”

{¶ 45} Mr. Buck argues in his third assignment of error any attorney fees award to

Mrs. Buck “is against the manifest weight of the evidence, not supported by equity, and

contrary to law” because each party should pay their own attorney fees and one-half of

the court costs. In support, Mr. Buck argues the magistrate wrongly stated he made

obtaining information difficult because he had roughly equal attorney fees, and his

counsel “prepared the extensive written Stipulations in the Appendix so as to narrow the

issues at trial” and timely responded to all discovery requests. Mr. Buck concedes the

“reason this case went to trial was a disagreement between counsel as to whether the

residue in the managed account was marital or separate.” Mr. Buck maintains the record

supports his claim the “disputed account is Mr. Buck’s separate property under R.C.

3105.171(A)(6)(a)(vi).”

{¶ 46} The relevant statute for an award of attorney’s fees and litigation expenses

in a divorce action is R.C. 3105.73(A), which states:

In an action for divorce * * *, a court may award all or part of

reasonable attorney’s fees and litigation expenses to either party if the court

finds the award equitable. In determining whether 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.

21.
 {¶ 47} We review an award or denial of attorney fees in domestic relations actions

pursuant to R.C. 3105.73 for an abuse of discretion. Davis v. Davis, 2016-Ohio-1388, 62

N.E.3d 873, ¶ 24 (6th Dist.), citing Moore v. Moore, 175 Ohio App.3d 1, 2008-Ohio-255,

884 N.E.2d 1113, ¶ 81 (6th Dist.). A trial court is authorized, but not required, to

consider factors such as “the conduct of the parties, and any other relevant factors the

court deems appropriate” when awarding attorney fees. R.C. 3105.73(A). This court has

previously stated a trial court in a domestic relations action is not required to make any

award for attorney fees. Davis at ¶ 31.

{¶ 48} The trial court’s December 18, 2017 judgment entry stated with respect to

attorney fees the following:

In awarding attorney’s fees, the Magistrate determined both Parties

maintained a “* * * self-interested and unbending attitude * * *.” The

Magistrate further found “* * * neither [party] put forth a true effort to

reach resolution or move towards resolution in any meaningful way.”

However, the Magistrate did find, “* * * the Plaintiff made it difficult to

obtain information, or merely note the potential for resolution.”

It is difficult, if not impossible, for this Court to conduct a de novo

review of the actions of the Parties as viewed by the trier of fact – which in

this case was the Magistrate. The Court can find nothing in the record that

does not support the Magistrate’s evaluation of how this case developed,

the conduct of the Parties or the other factors determined to be relevant to

22.
 the Magistrate’s determination of this issue. The Court therefore must rely

on the Magistrate’s observations and Findings in this regard. Therefore

both Plaintiff’s and Defendant’s Objections as to the award of attorney’s

fees is overruled and DENIED. (Emphasis sic.)

{¶ 49} The trial court then ordered, “The Defendant should be awarded the sum of

$5000 for attorney fees in this matter, to be adjusted by any set offs awarded to Plaintiff

in this matter.”

{¶ 50} The record shows Mrs. Buck submitted at the July 18, 2016 final hearing

evidence of her attorney fees and expenses of $17,646.16 for the period from October 12,

2015, to July 15, 2016. Mr. Buck did not submit evidence of his attorney fees other than

testifying he believed his “legal fees [are] roughly that or maybe even more.” The parties

then briefed the issue of attorney fees to the magistrate. The magistrate’s March 20, 2017

decision states:

There were few, if any, meaningful negotiations in this case. Not as

a result of the Attorneys being unwilling to negotiate or resolve matters, but

what appears to be more a self-interested and unbending attitude from the

Parties. Neither put forth a true effort to reach resolution or move towards

resolution in any meaningful way. However, [the magistrate] does find that

Plaintiff in several instances made it difficult to obtain information, or

merely ignored the potential for resolution. In light of these factors, and in

consideration of R.C. 3105.73(A), it is the Decision of the [magistrate] that

23.
 Defendant should be awarded the sum of $5000 for attorney fees in this

matter, to be adjusted by any set offs awarded to Plaintiff in this matter.

{¶ 51} In this case the trial court considered the conduct of the parties as

relayed by the magistrate’s decision and further found nothing in the record to

rebut the magistrate’s evaluation of the parties’ conduct. We find that although

both parties rely on the issue of the designation of the “managed account” as either

marital or separate property as a determinative factor in the attorney fee award, the

trial court found the entire net settlement award, from which the “managed

account” derived, was a marital asset. The trial court’s December 18, 2017

judgment entry summarizes its view of the parties’ marital property dispute:

It has been the observation of this Court that when Parties are getting

along, there is no discussion about whether monies (which are being

utilized for ongoing expenses) are “gifts,” the source of the funds or the

appropriateness of the expenditures made. Those issues only become

paramount when the Parties are not getting along and are considering

divorce. Hindsight is 20/20. Both Parties appear to have recreated in their

own mind a scenario which best benefitted them at the time of the divorce.

This Court is not impressed with such a self-serving manipulation of

history.

{¶ 52} We find the trial court did not abuse its discretion when it denied the

objections and ordered the attorney fees award of $5,000 to Mrs. Buck.

24.
 {¶ 53} Mrs. Buck’s fourth assignment of error and Mr. Buck’s third assignment of

error are not well-taken.

{¶ 54} The judgment of the Fulton County Court of Common Pleas is affirmed.

Appellant/cross-appellee and appellee/cross-appellant are ordered to equally pay the costs

of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

25.