Lichtenstein v. Lichtenstein

[Cite as Lichtenstein v. Lichtenstein, 2020-Ohio-5080.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

RYAN LICHTENSTEIN, :

Plaintiff-Appellee, :
No. 108854
v. :

MELISSA LICHTENSTEIN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: October 29, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-16-362842

Appearances:

McCarthy Lebit Crystal & Liftman Co., L.P.A., and Richard
A. Rabb, for appellee.

Law Offices of Anne S. Magyaros, L.L.C., and Anne S.
Magyaros, for appellant.

MARY J. BOYLE, P.J.:

Defendant-appellant, Melissa Lichtenstein (“wife”), appeals from the

trial court’s judgment sustaining her objections in part and overruling them in part
with respect to issues in the divorce between wife and plaintiff-appellee, Ryan

Lichtenstein (“husband”). Wife raises six assignments of error for our review:

1. The trial court abused its discretion in its determination of child
support.

2. The trial court abused its discretion in finding separate property
interests for husband.

3. The trial court abused its discretion in failing to divide marital debts
and assets equally.

4. The trial court abused its discretion in awarding attorney fees.

5. The trial court erred in terminating temporary orders when there was
no change of circumstances.

6. The trial court erred in denying as moot the appellant’s motion to set
aside magistrate’s order filed on February 19, 2018[,] and appellant’s
motion for modification of support and temporary orders filed on
January 15, 2019 and February 28, 2019.

We find merit to wife’s first, fourth, and sixth assignments of error.

We also find merit in part to wife’s third assignment of error. Wife’s second

assignment of error is overruled, and her fifth assignment of error is premature. We

therefore affirm in part, reverse in part, and remand.

I. Procedural History and Factual Background

Husband and wife were married on June 15, 2012, and had one child

born as issue of their marriage (d.o.b. May 27, 2013). Husband filed for divorce on

July 1, 2016. Wife answered and filed a counterclaim for divorce from husband.

On April 20, 2017, wife filed a motion for temporary support. The

parties entered into an agreed judgment entry where husband agreed to pay wife’s

charges on a credit card up to $665 each month, wife’s car insurance expenses, all
work-related day care expenses for the child, and health insurance premiums for

wife and the child.

The parties entered into a shared parenting plan just before their final

divorce hearing began, where they agreed to have equal parenting time with their

child and make joint decisions on all parenting matters. However, they did not agree

on child support and left that issue for the court to decide.

The magistrate held final hearings on the parties’ divorce and related

matters over a period of four days: December 15, 2017, January 31, February 5, and

February 9, 2018. At the conclusion of trial, the magistrate granted husband’s

motion to modify the temporary support orders in part. The magistrate stated that

“after listening to the evidence presented at trial, [husband’s] motion should be

granted effective immediately as to the $665.00 per month.” The magistrate left the

remaining temporary orders in place. The magistrate’s order was journalized on

February 9, 2018. On February 19, 2018, wife filed a motion to set aside the

magistrate’s order pursuant to Civ.R. 53(D)(2)(b).

The magistrate issued his decision on all remaining matters eight

months later, on October 19, 2018. Wife filed timely objections (and supplemental

objections) to the magistrate’s decision, raising 40 objections.

On January 15, 2019, wife filed a motion to modify the temporary

support orders pursuant to Civ.R. 75(N), alleging that there had been a change in

circumstances since the temporary orders went into effect. Wife filed an amended
motion on February 28, 2019, correcting a mistake that she made in her original

motion.

On July 8, 2019, the trial court sustained wife’s first objection, finding

that the magistrate erred when he forgot to include the list of exhibits that were

admitted into evidence. But the trial court found that it was clear from the

magistrate’s decision that he considered all relevant evidence when making his

decision. The trial court overruled wife’s remaining 39 objections. In the same

judgment entry that overruled wife’s objections, the trial court issued the final

divorce decree, granting the parties a divorce and approving their shared parenting

plan.1

On July 9, 2019, the trial court also denied as moot wife’s motion to

set aside the magistrate’s order terminating the monthly $665 payment towards the

credit card and wife’s motion to modify the temporary support orders.

It is from these judgments that wife now appeals.

II. Child Support

In her first assignment of error, wife argues that the trial court abused

its discretion when it determined child support. She maintains that the trial court

abused its discretion (1) by failing to name husband obligor, (2) in determining

husband’s income, (3) in allocating equal responsibility for the child’s uncovered

1
We find it troubling that the trial court overruled wife’s objections in the same
judgment as the final divorce decree. The parties will likely have to share the final decree
many times in the coming years to prove that they are divorced. We do not believe that
the issues the parties had in their marriage or during the divorce should be a part of the
final divorce decree.
medical expenses, and (4) in allocating the tax benefit of claiming the child to

husband.

When a trial court reviews a magistrate’s decision, it “does not sit in

the same manner as an appellate court; rather, it must conduct an independent

review of the facts and conclusions made by the magistrate.” Haupt v. Haupt, 11th

Dist. Geauga No. 2015-G-0049, 2017-Ohio-2719, ¶ 26, citing Phillips v. Phillips,

2014-Ohio-5439, 25 N.E.3d 371, ¶ 26 (5th Dist). Civ.R. 53(D)(4)(d) provides in

relevant part that “the court shall undertake an independent review as to the

objected matters to ascertain that the magistrate has properly determined the

factual issues and appropriately applied the law.” This “independent review”

requires the court to “‘conduct a de novo review of the facts and an independent

analysis of the issues to reach its own conclusions about the issues in the case.’” In

re I.R.Q., 8th Dist. Cuyahoga No. 105924, 2018-Ohio-292, ¶ 23, quoting Radford v.

Radford, 8th Dist. Cuyahoga Nos. 96267 and 96445, 2011-Ohio-6263, ¶ 13. “The

trial court must decide ‘whether the [magistrate] has properly determined the

factual issues and appropriately applied the law, and where the [magistrate] has

failed to do so, the trial court must substitute its judgment for that of the

[magistrate].’” Gobel v. Rivers, 8th Dist. Cuyahoga No. 94148, 2010-Ohio-4493,

¶ 16, quoting Inman v. Inman, 101 Ohio App.3d 115, 118, 655 N.E.2d 199 (2d

Dist.1995). It is generally presumed that the trial court properly conducted an

independent review of the magistrate’s decision unless the party asserting the error

affirmatively shows otherwise. Hartt v. Munobe, 67 Ohio St.3d 3, 7, 615 N.E.2d 617
(1993) (“An appellate court reviewing a lower court’s judgment indulges in a

presumption of regularity of the proceedings below.”).

An appellate court’s standard of review is whether the trial court

abused its discretion in adopting the magistrate’s decision. A trial court’s ruling on

objections to a magistrate’s decision will not be reversed absent an abuse of

discretion. Gobel at id. Further, when reviewing the propriety of a trial court’s

determination in a domestic relations case, an appellate court generally applies an

abuse-of-discretion standard. Gray v. Gray, 8th Dist. Cuyahoga No. 95532, 2011-

Ohio-4091, ¶ 7, citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028

(1989).

When reviewing the child support issues in this case, the trial court

did not conduct an independent review of the magistrate’s decision. Instead, the

trial court simply found that “the magistrate was in the best position to weigh the

evidence before him.” The trial court abused its discretion in doing so.

As this court explained in In re R.C., 8th Dist. Cuyahoga No. 96396,

2011-Ohio-4641:

[T]he court must conduct “a de novo review of any issue of fact or law
that a magistrate has determined when an appropriate objection is
timely filed. The trial court may not properly defer to the magistrate in
the exercise of the trial court’s de novo review. The magistrate is a
subordinate officer of the trial court, not an independent officer
performing a separate function.”

Id. at ¶ 11, quoting Knauer v. Keener, 143 Ohio App.3d 789, 793-794, 758 N.E.2d

1234 (2d Dist.2001).
 After reviewing the trial court’s decision on the four child support

issues raised by wife, we find that the trial court improperly deferred to the

magistrate. Although the trial court did not defer to the magistrate on wife’s

objections relating to the allocations of the tax dependency and uncovered medical

expenses, these issues are inextricably intertwined with the remaining child support

issues and, therefore, we cannot reach the merits of them until the trial court

independently addresses all of the child support issues without deference to the

magistrate’s decision.

Accordingly, wife’s first assignment of error is sustained.

III. Separate Property Interests

In her second assignment of error, wife argues that the trial court

erred when it found that husband’s Charles Schwab IRA was his separate property

and that husband had “any separate equity” in the real estate located on Huron

Road.

In determining whether assets are marital or separate, the trial court

is governed by R.C. 3105.171. Marital property generally includes all property

acquired by either party during the marriage as well as the appreciation of separate

property due to the labor, monetary, or in-kind contributions of either party during

the marriage. R.C. 3105.171(A)(3)(a)(i) and (iii). Trial courts must divide marital

property equitably between the spouses. R.C. 3105.171(B). Usually, this requires

that marital property be divided equally. R.C. 3105.171(C)(1). “However, if the trial

court determines that an equal division would produce an inequitable result, it must
divide the property in a way it deems equitable.” O’Rourke v. O’Rourke, 4th Dist.

Scioto No. 08CA3253, 2010-Ohio-1243, ¶ 15; R.C. 3105.171(C)(1).

Marital property does not include separate property. R.C.

3105.171(A)(3)(b). “Property that is acquired during the marriage is presumed to be

marital property unless it can be shown to be separate.” Ockunzzi v. Ockunzzi, 8th

Dist. Cuyahoga No. 86785, 2006-Ohio-5741, ¶ 17. “Separate property” includes all

real and personal property that was acquired by one spouse prior to the marriage

and any “passive income and appreciation acquired from separate property by one

spouse during the marriage.” R.C. 3105.171(A)(6)(a)(ii) and (iii). Separate property

commingled with marital property remains as separate property unless it becomes

no longer traceable. R.C. 3105.171(A)(6)(b). Thus, traceability becomes the focus in

determining whether separate property has lost its character after being

commingled with marital property. Peck v. Peck, 96 Ohio App.3d 731, 734, 645

N.E.2d 1300 (12th Dist.1994). The party seeking to establish an asset as separate

property has the burden of proof, by a preponderance of the evidence, to trace the

asset as separate property. Hildebrand v. Hildebrand, 5th Dist. Morrow No. 954,

2003-Ohio-3654, ¶ 11, citing Zeefe v. Zeefe, 125 Ohio App.3d 600, 614, 709 N.E.2d

208 (8th Dist.1998).

Once a trial court has classified the property as either marital or

separate, review of that determination is limited to the standard of manifest weight

of the evidence. Marcum v. Marcum, 116 Ohio App.3d 606, 612, 688 N.E.2d 1085

(2d Dist.1996). “This standard of review is highly deferential and [only] some
evidence is sufficient to sustain the judgment and prevent a reversal.” Barkley v.

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

The manifest weight standard in a civil case is the same as it is in a

criminal case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, ¶ 17. In Eastley, the Ohio Supreme Court explained:

Weight of the evidence concerns “the inclination of the greater amount
of credible evidence, offered in a trial, to support one side of the issue
rather than the other. It indicates clearly to the [factfinder] that the
party having the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.”

Id. at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997).

When conducting a manifest weight review, this court “weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the [finder of fact] clearly

lost its way and created such a manifest miscarriage of justice that the [judgment]

must be reversed and a new trial ordered.” Thompkins at ¶ 20.

A. Charles Schwab IRA

Wife maintains that the trial court abused its discretion when it

determined that husband met his burden of establishing the Charles Schwab Roth

IRA was his separate property.
 Husband testified that he had the IRA prior to the marriage and that

he made no contributions to it during the marriage. He partially corroborated that

testimony with documentation from Charles Schwab showing that the account

existed prior to the marriage and that he did not make contributions to the account

from 2015 through 2017. The documentation showed husband’s IRA account value

as of June 15, 2012, the date the parties got married. The documentation also

showed the year-end statements from 2015 through 2017, which showed that

husband did not make any contributions during those years.

Wife argues, however, that husband failed to submit any

documentation to support his testimony for the years 2012 to 2015. Husband

testified that he tried to get the documents for those years but because Charles

Schwab had changed the accounts, he could not get them. The trial court found

husband’s testimony that he did not contribute to the IRA during the marriage to be

credible with respect to the years for which he did not have documentation.

It is important to remember that a party seeking to establish the

separate property has the burden of proof only by a preponderance of the evidence.

Matic v. Matic, 11th Dist. Geauga No. 2000-G-2266, 2001 Ohio App. LEXIS 3360,

9 (July 27, 2001). “‘Preponderance of the evidence means the greater weight of

evidence that is necessary to destroy the equilibrium.’” Reed v. Reed, 3d Dist. Allen

No. 1-09-63, 2010-Ohio-4550, ¶ 10, quoting State v. Stumpf, 32 Ohio St.3d 95, 102,

512 N.E.2d 598 (1987). “It is that proof which leads the trier of fact to find that the

existence of the contested fact is more probable than its nonexistence.” Reed at id.
Preponderance of the evidence is a lesser standard than clear and convincing

evidence and beyond a reasonable doubt. See Cross v. Ledford, 161 Ohio St. 469,

120 N.E.2d 118 (1954), paragraph three of the syllabus (“Clear and convincing

evidence is that measure or degree of proof which is more than a mere

‘preponderance of the evidence,’ but not to the extent of such certainty as is required

‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be

established.”).

In Matic, the appellee could only physically document that a portion

of her premarital funds were placed in a joint account to be used as a down payment

on their marital home. The appellant argued that appellee failed to corroborate her

testimony with financial statements showing that her remaining premarital funds

were also placed in the joint account. The Eleventh District found that financial

statements were not the only way that wife could prove that all her premarital funds

were used as a down payment on the parties’ marital residence. Id.

After review, we find that the trial court did not abuse its discretion

when it adopted the magistrate’s decision with respect to the Charles Schwab IRA.

We agree that husband established by a preponderance of the evidence that the IRA

was his separate property. We further note that wife could have subpoenaed the

Charles Schwab records herself to impeach husband’s testimony, but she did not do

so. Thus, we find no merit to wife’s arguments regarding husband’s IRA.
 B. Real Estate

Wife argues that the trial court abused its discretion in determining

husband’s separate property interest in the Huron Road property. The trial court

found that the Huron Road property was husband’s separate property and that the

decrease in the principal owed on the mortgage at the time of the marriage

commencement and the principal owed as of December 1, 2017, the marriage

termination, was $10,362.50. The trial court found this amount to be the marital

equity in the property. The trial court therefore awarded wife $5,181.25, for her

share of this equity.

Wife argues that based on the evidence at trial, the equity should have

been $41,346 to $44,984, because husband testified that the current value of the

home was $146,187 and $104,841.18 was owed on the mortgage. Husband testified

that he acquired the property in February 2006, and he submitted a warranty deed

into evidence establishing this fact. He also established that the mortgage owed on

the property as of the date of the marriage was $115,283.13, and that the mortgage

owed as of the termination of the marriage was $104,875.63. Thus, the parties paid

a total of $10,362.50 towards reducing the principal of the mortgage during the

marriage. The trial court further found that wife did not claim or present any

evidence that the home appreciated due to the labor, monetary, or in-kind

contribution of herself or husband.

Wife further argues that husband failed to present any evidence of

equity or value in the Huron Road property at the time of the commencement of the
marriage. She therefore contends that the trial court abused its discretion by finding

that the property was husband’s separate property. We disagree. Husband acquired

the home over six years before the commencement of the marriage. We agree that

to establish the marital equity in property, parties generally present evidence of the

value of the home at the commencement of the marriage and the value of the home

at the termination of the marriage. See Al-Mubarak v. Chraibi, 8th Dist. Cuyahoga

No. 101392, 2015-Ohio-1018, ¶ 50; Kapadia v. Kapadia, 8th Dist. Cuyahoga No.

94456, 2011-Ohio-2255, ¶ 33; Matic, 11th Dist. Geauga No. 2000-G-2266, 2001

Ohio App. LEXIS 3360, at 16. But “[r]igid rules to determine value cannot be

established, as equity depends on the totality of the circumstances.” Baker v. Baker,

83 Ohio App.3d 700, 702, 615 N.E.2d 699 (9th Dist.1992). We are also cognizant

that a trial court has broad discretion in fashioning an equitable division of marital

property. Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983).

After review in this case, we cannot say that the trial court abused its discretion in

valuing the marital equity as the amount the mortgage principal decreased during

the marriage. The marriage was of relatively short duration (approximately four

years). And again, wife did not claim or present any evidence that the home

appreciated due to the labor, monetary, or in-kind contribution of herself or

husband.

Wife further argues that if husband had not refinanced the property

during the pendency of the divorce and rolled over the closing costs into the

mortgage, the amount owed as of the termination of the marriage would have been
$101,211.90 rather than $104,841.18 and thus, the marital equity should have been

$3,629.28 more. Wife testified, however, that she fully consented to the refinancing

of the Huron Road property. Therefore, she cannot claim now that husband

decreased the amount of marital equity by doing so. We find no merit to wife’s

claims about the Huron Road property.

Having found no merit to either issue in wife’s second assignment of

error, we overrule it.

IV. Marital Debts and Assets

In her third assignment of error, wife argues that the trial court

abused its discretion in failing to divide the marital debts and assets equally. She

raises six issues with respect to this assigned error.

A. Retirement Assets

Wife argues that the trial court abused its discretion when it ordered

that a qualified domestic relations order should issue from husband’s 401K for the

exact sum of $19,690.14, rather than allow her to receive the benefits and gains on

that sum until distribution.

The trial court determined that the marital portion of husband’s

retirement account amounted to $51,409.18, and that the marital portion of wife’s

two retirement accounts were $10,517.98 and $1,510.92. From these numbers, the

trial court found that wife was entitled to $19,690.14 from husband’s retirement

account. R.C. 3107.171(A)(3)(a)(ii) states that marital property is the interest that

either spouse currently has in “the retirement benefits of the spouses, and that was
acquired by either or both of the spouses during the marriage.” That is the amount

the trial court awarded wife. Accordingly, we find no merit to wife’s argument.

B. Husband’s Unused Sick and Vacation Time

Wife argues that the trial court abused its discretion when it failed to

find that husband’s accrued sick and vacation time were marital assets. The trial

court found that because husband would not be entitled to compensation for unused

sick time while he was still employed or upon his separation of employment, wife

was not entitled to a monetary award for husband’s unused sick time. Regarding

husband’s unused vacation time, the trial court found that because husband would

not be paid for it until he leaves his employment, that wife was not entitled to an

award for that either.

In Weller v. Weller, 11th Dist. Geauga No. 2001-G-2370, 2002-Ohio-

7125, the Eleventh District explained:

[S]everal Ohio appellate districts have determined that accrued sick
leave benefits resemble deferred bonus payments or pension plan
accumulations and, as such, qualify as an interest in property subject
to division as a marital asset under R.C. 3105.171(A)(3)(a)(ii).
Herrmann v. Herrmann (Nov. 6, 2000), 12th Dist. Nos. CA99-01-006
and CA99-01-011, 2000 Ohio App. LEXIS 5146, *9; Hartley v. Hartley
(Apr. 24, 1998), 2d Dist. No. 16668, 1998 Ohio App. LEXIS 1745, *3-4;
Pearson v. Pearson (May 20, 1997), 10th Dist. No. 96 APF08-1100,
1997 Ohio App. LEXIS 2223, 1997 WL 275496, 8-9. The rationale for
this principle is that “since sick leave benefits, like deferred bonus
payments or pension plan accumulations, are accumulated by the
employee during the employment in exchange for past services
rendered, they are essentially deferred compensation earned during
working years.” Herrmann[,] 2000 Ohio App. LEXIS 5146 at *10.
Hence, if the sick leave benefit is earned by the employee spouse during
the marriage, then it logically belongs to the marital estate.
Id. at ¶ 24. The same rationale applies to accumulated vacation time. Bergman v.

Bergman, 2d Dist. Montgomery No. 25378, 2013-Ohio-715, ¶ 13.

In this case, wife submitted evidence into the record that husband

earns $35.14 per hour and had accrued 495.37 hours of sick time and 185.33 hours

of vacation time. The trial court found, however, that the evidence established that

husband’s employer does not pay employees for “unused sick time either during

employment or upon termination of employment.” If husband is not entitled to

compensation for unused sick time, then there is no marital value to it, and the trial

court did not abuse its discretion regarding unused sick time.

With respect to husband’s unused vacation time, he testified that he

was not aware of any policy where he could “cash out” the unused vacation time

while he was employed with the company. But he agreed that when he separates

from his employer, he will get paid for any unused vacation time. Courts have held

that there is marital value in unused vacation time if a spouse has the right to receive

compensation for the value of it upon termination or retirement. Bergman at id.;

Pearson, 10th Dist. Franklin No. 96APF08-1100, 1997 Ohio App. LEXIS 2223, at

24. Therefore, the trial court in this case abused its discretion when it based its

decision on the fact that husband would not receive compensation for his unused

vacation time until he left his employment. Because husband will be paid for his

unused vacation time when he separates from his employment, wife is entitled to

her share of husband’s vacation time that was accrued during the marriage. Upon
remand, the trial court should determine the value of husband’s unused vacation

time that was accrued during the marriage and award wife her share of that amount.

C. Real Estate and IRA

Wife also argues that the trial court erred when it failed to award her

a portion of the Huron Road property and the Charles Schwab Roth IRA. We

previously addressed these arguments and do not need to repeat them here.

D. Wife’s Marital Debt

Wife maintains that the trial court abused its discretion when it

ordered her to pay her medical debts that she incurred during the marriage.

The trial court ordered that all of husband’s health savings account

($6,628), which was 100% marital, be awarded to wife so that she could pay her

medical debt that equaled $6,101.28. Despite awarding the entire health savings

account to wife, the trial court determined that wife was entitled to $3,314.05 for her

share of it. Because $3,314.04 was husband’s share of the asset, the trial court

ordered that husband’s share of the health savings account be offset against the

portion of marital equity that wife would receive from the Huron Road property.

Wife claims that the result of the offset was that her medical debt ended up being

her separate debt. We disagree. In essence, husband and wife equally paid half of

wife’s medical debt and received half of the health savings account. In doing so, we

find no abuse of discretion on the part of the trial court.
 E. Husband’s PNC Account

Wife argues that the trial court erred when it failed to find that

husband depleted the PNC account prior to trial. She maintains that the trial court

should have charged “[h]usband with spending down marital assets prior to trial.”

Wife asserts that the PNC checking account had $14,853.63 in it at

the commencement of the divorce. She points to the fact that husband made

withdrawals for the Horseshoe Casino and other casinos amounting to $6,397.

However, husband testified and submitted evidence documenting his testimony that

from September 2015 until December 2017, wife charged $13,936.94 on husband’s

credit card, which he paid from the PNC account. Husband also established that he

paid for nearly all of the child-care expenses during the pendency of the divorce,

which were approximately $900 per month.

The magistrate found that neither party violated the mutual

restraining orders. The magistrate further found that husband “shouldered a

disproportionate share of the family’s expenses even after separation, to his financial

detriment.” The magistrate explained that husband “generously agreed during 2017

to provide [wife] with a monthly ‘allowance’ as a form of [t]emporary support,

despite the fact that [wife] lives with her parents rent-free, despite the fact the

parties had been separated from each other for nearly two years at that point, and

despite the fact [wife] previously quit a higher-paying job for no apparent, legitimate

reason.” The trial court approved and adopted the magistrate’s decision with

respect to the PNC account. Therefore, we disagree with wife that the trial court
abused its discretion when it did not “charge” husband with “spending down the

marital assets prior to trial.”

However, with respect to the 2016 tax refunds that were deposited

into the PNC account in October 2017, $4,856 from federal and $233 from the state,

we agree with wife that they were marital property subject to division. See Frye v.

Frye, 10th Dist. Franklin No. 93APF09-1218, 1994 Ohio App. LEXIS 1424 (Mar. 31,

1994) (tax refund is a marital asset). Accordingly, upon remand, the trial court

should divide the 2016 tax refunds equitably and award wife her share of them.

F. The 529 College Account

Wife contends that the trial court erred when it failed to equally divide

the College Advantage 529 account that husband opened for the benefit of their

child. Wife’s argument relating to this issue is two sentences. She also cites no

authority in support of her argument. We therefore summarily overrule it.

Wife’s third assignment of error is sustained in part with respect to

husband’s vacation time accrued during the marriage and overruled in part with

respect to all remaining issues.

V. Attorney Fees

In her fourth assignment of error, wife argues that the trial court

erred when it ordered her to pay $3,000 of husband’s attorney fees, which amounted

to a total of $62,055.80. With respect to this issue, the trial court overruled wife’s

objection and found that the magistrate “had wide discretion regarding whether to
award attorney fees and that the [m]agistrate was in the best position to weigh the

evidence before him.”

Just as we found with respect to wife’s first assignment of error, the

trial court abused its discretion when it failed to independently review the

magistrate’s decision with respect to attorney fees. Simply put, the trial court cannot

defer to the magistrate. In re I.R.Q., 8th Dist. Cuyahoga No. 105924, 2018-Ohio-

292, at ¶ 23, quoting Radford, 8th Dist. Cuyahoga Nos. 96267 and 96445, 2011-

Ohio-6263, at ¶ 13.

Accordingly, wife’s fourth assignment of error is sustained.

VI. Temporary Orders

In her fifth assignment of error, wife argues that the trial court erred

when it terminated the temporary orders when there was no change in

circumstances. In her sixth assignment of error, she argues that the trial court erred

when it denied her motion to set aside the magistrate’s order and her motion to

modify temporary support as moot. Wife maintains that the trial court should

reinstate the temporary orders from February 9, 2018, to the date of the final divorce

decree, July 5, 2019. In the alternative, she argues that the trial court should have

granted her motion to modify temporary support.

Temporary orders are subject to appellate review once a final order

has been entered by the court. Millstein v. Millstein, 8th Dist. Cuyahoga Nos. 79617,

79754, 80184, 80185, 80186, 80187, 80188, and 80963, 2002-Ohio-4783, ¶ 28

(temporary support orders become subject to review after the court enters its final
judgment.); Dilacqua v. Dilacqua, 88 Ohio App.3d 48, 57, 623 N.E.2d 118 (9th

Dist.1993) (“Temporary support orders, like other interlocutory orders, are

reviewable after entry of a final decree disposing of the action in which they were

entered.”).

Husband argues that wife did not preserve this argument because she

did not object to it under Civ.R. 53 when she filed her other objections. But wife

timely filed a motion to set aside the magistrate’s order terminating the $665 per

month, which was 17 months before the trial court issued the final judgment, and

she filed a motion to modify temporary support five months before the final

judgment. Therefore, she preserved the issues relating to temporary support.

The parties entered an agreed judgment entry for temporary support

on July 11, 2017. Husband agreed to pay $665 per month of wife’s charges on a

credit card. Husband also agreed to pay all work-related, child-care expenses,

health-insurance coverage for wife and the child, and wife’s car insurance. In

October 2017, prior to the final divorce trial, husband moved to modify the

temporary support, arguing that he had reason to believe that wife had obtained new

employment since the agreed temporary orders had gone into effect. At the

conclusion of trial, the magistrate heard arguments on husband’s motion and

modified the temporary orders. The magistrate ordered that the $665 payments be

terminated immediately but left the remaining orders intact.

Within ten days of the magistrate’s order terminating the $665

temporary support payments to wife, she filed a motion to set aside the magistrate’s
order pursuant to Civ.R. 53(D)(2)(b), arguing that the magistrate erred when he

granted husband’s motion to modify temporary support because there had not been

a change in circumstances. Wife maintained in her motion to set aside the

magistrate’s order that there had not been a change of circumstances because she

had been working at the same place of employment, earning the same salary, since

the magistrate issued the agreed temporary support order in July 2017.

Wife also filed a motion to modify temporary support pursuant to

Civ.R. 75(N) on January 15 and February 28, 2019, arguing that there had been

several changes since the magistrate’s last order. Specifically, wife contended, inter

alia, that husband’s income had increased, the parties now had “50/50 time sharing

of their child which was not the case at the time of the temporary orders,” work-

related, child-care expenses had decreased significantly, and husband was no longer

paying wife’s health insurance expenses.

Civ.R. 53(D)(2)(b) states:

Any party may file a motion with the court to set aside a magistrate’s
order. The motion shall state the moving party’s reasons with
particularity and shall be filed not later than ten days after the
magistrate’s order is filed. The pendency of a motion to set aside does
not stay the effectiveness of the magistrate’s order, though the
magistrate or the court may by order stay the effectiveness of a
magistrate’s order.

Civ.R. 75(N)(1) provides:

When requested in the complaint, answer, or counterclaim, or by
motion served with the pleading, upon satisfactory proof by affidavit
duly filed with the clerk of the court, the court or magistrate, without
oral hearing and for good cause shown, may grant a temporary order
regarding spousal support to either of the parties for the party’s
 sustenance and expenses during the suit and may make a temporary
order regarding the support, maintenance, and allocation of parental
rights and responsibilities for the care of children of the marriage,
whether natural or adopted, during the pendency of the action for
divorce, annulment, or legal separation.

On July 8, 2019, just after it issued the final divorce decree, the trial

court denied wife’s motions to set aside the magistrate’s decision and to modify

temporary support as moot. The trial court explained that all matters were

addressed in the final decree. The issues, however, are whether the temporary

support should have continued from the date of the final divorce hearing (in

February 2018) until the court issued the final divorce decree (in July 2019), and

whether it should have been modified upon wife’s request. The trial court did not

issue the divorce decree until 17 months after the final hearing. Wife received over

$9,000 less in temporary support during this time. Therefore, the matter was not

moot, and the trial court should have addressed wife’s motions.

We therefore sustain wife’s sixth assignment of error and reverse and

remand for the trial court to address wife’s motions regarding temporary support

and to hold a hearing if necessary so that husband and wife can present their

evidence and arguments. However, we find wife’s fifth assignment of error

regarding the merits of the magistrate’s order modifying the temporary support to

be premature because the trial court has not yet addressed this issue.

Judgment affirmed in part and reversed in part. With respect to

wife’s first and fourth assignments of error, this matter is remanded for the trial

court to conduct an independent review of the magistrate’s decision on the matters
of child support and attorney fees. Upon remand, the trial court must also address

the matter of husband’s vacation time; i.e., determine whether any of it was accrued

during the marriage, value it, and equitably divide any marital portion, and address

the issue of the parties’ 2016 tax refunds and equitably divide them. Finally, the trial

court must also address the issue of temporary support that wife raised in her

motions. We also strongly recommend, for the parties’ benefit, that the trial court

issue a new final divorce decree addressing all issues in one judgment and rule on

wife’s objections in a separate judgment.

It is ordered that appellee and appellant share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, domestic relations division, to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________________
MARY J. BOYLE, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR