[Cite as Morgan v. Morgan, 2017-Ohio-402.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
YONG S. MORGAN :
:
Plaintiff-Appellant : C.A. CASE NO. 27164
:
v. : T.C. NO. 12LS25
:
GREGORY S. MORGAN : (Civil Appeal from Common
: Pleas Court, Domestic Relations)
Defendant-Appellee :
:
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OPINION
Rendered on the ___3rd __ day of ___February___, 2017.
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DAVID M. McNAMEE, Atty. Reg. No. 0068582, 2625 Commons Blvd., Suite A,
Beavercreek, Ohio 45431
Attorney for Plaintiff-Appellant
ABDOL-REZA PIRNIA, Atty. Reg. No. 0076486, 7071 Corporate Way, Suite 101, Dayton,
Ohio 45459
Attorney for Defendant-Appellee
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DONOVAN, P.J.
{¶ 1} Plaintiff-appellant Yong S. Morgan (hereinafter “Wife”) appeals a decision of
the Montgomery County Court of Common Pleas, Domestic Relations Division, overruling
her objections and adopting the magistrate’s decision regarding spousal support and the
allocation and distribution of the parties’ marital property. Wife filed a timely notice of
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appeal with this Court on June 29, 2016.
{¶ 2} Defendant-appellee Gregory C. Morgan (hereinafter “Husband”) and Wife
were married on July 1, 1988, in Seoul, Korea. The parties had no children. On August
28, 2012, Wife failed a complaint for legal separation. Thereafter, Husband filed an
answer and counterclaim for divorce on October 29, 2012. On November 6, 2012, the
trial court issued a temporary order awarding Wife temporary spousal support in the
amount of $400.00 per month plus an additional amount for housing expenses. On
January 22, 2013, the trial court modified the temporary order wherein it reset the amount
of temporary spousal support for Wife at $1,600.00 per month during the pendency of the
divorce.
{¶ 3} A trial was held before a magistrate on December 15 and 16, 2014. Both
parties were represented by counsel throughout the pendency of the divorce and
subsequent trial. On February 13, 2015, the magistrate issued a decision allocating debt
and distributing marital assets to both parties, as well as awarding spousal support to
Wife. After several continuances were granted by the trial court, Wife filed her objections
to the magistrate’s decision on August 3, 2015. Husband filed his response to Wife’s
objections on August 12, 2015.
{¶ 4} On April 6, 2016, the trial court overruled Wife’s objections and adopted the
magistrate’s decision in its entirety. Thereafter, a Final Judgment and Decree
of Divorce was filed on June 2, 2016, which incorporated the terms set forth in the trial
court's decision issued on April 6, 2016.
{¶ 5} It is this judgment that Wife now appeals.
{¶ 6} Wife’s first assignment of error is as follows:
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{¶ 7} “THE TRIAL COURT ERRED WHEN IT USED THE APRIL 11, 201[2] DATE
AS THE VALUATION DATE TO DIVIDE THE PARTY’S ASSETS.”
{¶ 8} In her first assignment, Wife contends that the trial court erred when it
concluded that the de facto termination date of the parties’ marriage was April 11, 2012,
for the purpose of valuing and dividing the marital assets.
{¶ 9} Initially, we note that the final decree specifies that the parties were married
on July 1, 1988, but it does not specify when the marriage ended. However, in its
decision adopting the magistrate’s decision, the trial court found that it was equitable to
both parties to utilize April 11, 2012, as the de facto termination date of the marriage.
R.C. 3105.171(G) provides that, when dividing marital property, the trial court “shall
specify the dates it used in determining the meaning of ‘during the marriage.’ ” “Normally,
the final hearing date is presumed to be the termination date of the marriage for purposes
of property division, unless the court uses a de facto termination date. See, e.g., R.C.
3105.171(A)(2), and Badovick v. Badovick (1998), 128 Ohio App.3d 18, 31, 713 N.E.2d
1066.” Avery v. Avery, 2d Dist. Greene No. 2001–CA–100, 2002 WL 360296, *5 (March
8, 2002).
{¶ 10} “During the marriage” means the period of time from the date of
the marriage through the date of the final hearing in the divorce action, unless the court
determines that either or both dates would be inequitable, in which event “during the
marriage” means the period between the dates the court selects. R.C. 3105.171(A)(2).
“The trial court has broad discretion in choosing the appropriate marriage termination date
and this decision should not be disturbed on appeal absent an abuse of discretion.”
Walpole v. Walpole, 8th Dist. Cuyahoga No. 99231, 2013–Ohio–3529, ¶ 102, citing Berish
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v. Berish, 69 Ohio St.2d 318, 321, 432 N.E.2d 183 (1982).
{¶ 11} At the divorce hearing, the following exchange occurred while the parties
were discussing stipulations with the trial court prior to calling witnesses:
The Court: Okay. And the only other thing I understand it [sic], the
parties separated and have been separate and apart at least from April 15,
2012?
Plaintiff’s Counsel: That’s correct, Your Honor.
Wife: She said 2012. I mean, 2012, April 12.
The Court: April 12.
Wife: Yes.
The Court: April 11[, 2012]?
Wife: Yes.
(Tr. 5, 6)
{¶ 12} Husband also gave the following testimony regarding the significance of
April 11, 2012, during his direct testimony:
Defense Counsel: Okay: And when was the last date you resided in
the marital residence?
Plaintiff’s Counsel: April 11, 2012.
Defense Counsel: Just having [Husband] confirm it.
The Court: Say it, sir. The nods don’t get recorded or put down.
Husband: April of 2012.
***
Defense Counsel: Why were they present at the residence on April
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11, 2012?
Husband: Whenever a member asks for assistance to go to the
residence, to leave the residence, it is always policy that if they ask for law
enforcement presence, law enforcement goes with them. Along with a
supervisor. To go to the residence.
{¶ 13} In our view, the evidence supports the trial court's conclusion that the parties
no longer contributed to each other for each other's benefit as partners, and their marriage
was irretrievably broken, as of April 11, 2012. By that date, the parties resided in
separate locations and had apparently ceased any pursuit of a reconciliation.
Additionally, the evidence adduced at the divorce hearing established that as of April 11,
2012, the parties shared several bank accounts containing marital funds. After the
parties separated on April 11, 2012, the record established that some of the bank
accounts shared by the parties had been drained and thereafter transferred to accounts
separately owned by Husband or Wife.
{¶ 14} Based on the parties' stipulation, the trial court found that the duration of
the parties' marriage was from July 1, 1988, through April 11, 2012. A court must
exercise its discretion to choose a date upon which to value the parties' assets in an
equitable manner. Here, the parties stipulated to a de facto termination date of their
marriage for purposes of valuing and dividing marital assets. Specifically, the trial court
correctly valued the following accounts as of April 11, 2012: 1) Husband’s USAA Roth
IRA # 6385: $1,033.00; 2) USAA Joint Savings Account # 0163: $29,034.59; and
Husband’s USAA Checking Account # 8707: $1,207.00 The trial court's use of April 11,
2012, in order to determine the duration of the parties’ marriage and to value
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their marital assets, including bank accounts to which both parties had access, was not
unreasonable, arbitrary or unconscionable. Further, the trial court did not abuse its
discretion by not altering the value of assets based on withdrawals and deposits made by
either party between the de facto termination date and trial.
{¶ 15} Wife’s first assignment of error is overruled.
{¶ 16} Wife’s second assignment of error is as follows:
{¶ 17} “THE TRIAL COURT ERRED IN ITS FINDING REGARDING THE
$195,427.79 DEPOSIT AND $195,602.48 WITHDRAWAL IN DECEMBER OF 2012.”
{¶ 18} In her second assignment, Wife argues that the trial court erred when it
failed to address the $195,427.79 deposit to the parties’ USAA Joint Account 5253 and
withdrawal of $195,602.48 from the same account in December of 2012.
{¶ 19} “ ‘The trial court enjoys broad discretion in determining the value of
a marital asset; however, this discretion is not limitless. Our task on appeal is not to
require the adoption of any particular method of valuation, but to determine whether,
based on all the relevant facts and circumstances, the court abused its discretion in
arriving at a value.’ ” Entingh v. Entingh, 2d Dist. Montgomery No. 22117, 2008–Ohio–
756, at ¶ 9, citing James v. James, 101 Ohio App.3d 668, 681, 656 N.E.2d 399 (2d
Dist.1995).
{¶ 20} A trial court errs and abuses its discretion if it “summarily arrives at a
valuation of an asset or property, even though between the two extremes of the opposing
parties' witnesses, without a proper evidential predicate.” Carter v. Carter, 2d Dist. Clark
No. 2008 CA 54, 2009–Ohio–3637, ¶ 17, citing Rodriguez v. Rodriguez, 11th Dist.
Geauga No. 89–G–1498, 1990 WL 47458 (Apr. 13, 1990). Even though the trier of fact
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is granted much leeway in obtaining a value, it must do so based upon the evidence
before it. Id. Nevertheless, we will not disturb a trial court's valuation as long as the
record contains sufficient evidence to support it.
{¶ 21} In support of her argument, Wife relies on the first page of Plaintiff’s Exhibit
35, which purports to be an account overview of the transactions in USAA Joint Account
5253 for the months of March, June, September, and December of 2012. The first page
of Pl.’s Exhibit 35 was printed from the internet on January 11, 2013, and states that
during December of 2012, there were “Additions” of $195,427.79 and “Withdrawals and
Fees” of $195,602.48. The document also establishes that the USAA Joint Account
5253 had a “Beginning Market Value” of $105,051.88 and an “Ending Market Value” of
$105,286.91.
{¶ 22} Defendant’s Exhibit OO, an Annual Investment Statement for USAA Joint
Account 5253 establishes that the total amount of cash withdrawals for 2012 totaled
$820.67 for advisory fees. Husband also testified that the only withdrawal from the
account in 2012 was $820.67. Def.’s Exhibit OO was a record of all of the transactions
which occurred in 2012 regarding USAA Joint Account 5253. Pursuant to the Husband’s
testimony and the Annual Investment Statement, the transactions that Wife alleges were
not established, but rather controverted. Moreover, neither party listed these additional
funds in their Affidavits of Financial Disclosure. Further, Wife did not list these alleged
funds in her pre-trial statement filed with the trial court on March 11, 2013. Simply put,
Wife failed to adduce sufficient evidence that the $195,427.79 deposit to the parties’
USAA Joint Account 5253 and withdrawal of $195,602.48 from the same account in
December of 2012 ever actually occurred.
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{¶ 23} Upon review, we conclude that the trial court did not err when it valued the
parties’ USAA Joint Account 5253 at $101,650, which was its value as of April 11, 2012,
the de facto termination date of the parties’ marriage, as represented in Husband’s
Affidavit of Financial Disclosure filed on April 24, 2012. The trial court noted that Wife’s
Affidavit of Financial Disclosure filed in May of 2012 listed the balance of USAA Joint
Account 5253 at $101,126.81 as of April 11, 2012, which it found to be “insignificantly
different” from the balance in Husband’s affidavit.
{¶ 24} Wife’s second assignment of error is overruled.
{¶ 25} Wife’s third assignment of error is as follows:
{¶ 26} “THE TRIAL COURT ERRED WHEN IT CREDITED PLAINTIFF WITH
$160,000 FROM THE EGLIN ACCOUNT.”
{¶ 27} In her third assignment, Wife argues that the trial court erred when it
credited her with $160,000.00 transferred to her by Husband from his Eglin Federal Credit
Union Account # 2043 to an account held by Wife in South Korea. Wife argues that this
amount was a loan to her brother which occurred two years before the parties’ separation.
Nevertheless, Wife contends that the evidence adduced at trial does not support whether
this money ever existed or what happened to it.
{¶ 28} At trial, Husband testified that approximately $160,000.00 was transferred
from his Eglin account to Wife’s account in South Korea in order to purchase real estate
there. Wife acknowledged this transfer of funds in her pre-trial statement filed on March
11, 2013. Prior to trial, however, Wife refused to comply with discovery requests related
to the transaction. We note that on June 4, 2014, the trial court issued an order to compel
to Wife to produce her account records from South Korea and real estate records for
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property purchased in South Korea. Wife refused to comply with the trial court’s order.
{¶ 29} Based on her refusal to comply with Husband’s discovery requests
regarding her foreign account(s), the trial court found that the $160,000.00 transfer was
properly attributable to Wife as marital property, and therefore, subject to distribution.
We agree.
{¶ 30} The credibility of the witnesses and the weight to be given to their testimony
were matters for the trier of fact to determine. The trial court found Wife’s testimony on
the subject of the $160,000.00 money transfer “disingenuous,” especially considering the
efforts made by Husband to obtain evidence with respect to the transaction and the
account belonging to Wife in South Korea. The trial court also cited Wife’s “persistent
refusal” to comply with Husband’s discovery requests as well as the order to compel
issued by the trial court. In light of the foregoing, we conclude that the trial court did not
err when it attributed $160,000.00 to Wife as marital property.
{¶ 31} Wife’s third assignment of error is overruled.
{¶ 32} Wife’s fourth assignment of error is as follows:
{¶ 33} “THE TRIAL COURT ERRED WHEN IT ALLOCATED $6,000.00 TO
PLAINTIFF-APPELLANT’S PROPERTY DIVISION BECAUSE PLAINTIFF-APPELLANT
DID NOT USE $6,000.00 OF MARITAL FUNDS TO PURCHASE THE VEHICLE;
PLAINTIFF-APPELLANT USED $6,000.00 TO PAY OFF THE REMAINDER OF THE
LOAN.”
{¶ 34} In her fourth assignment, Wife contends that the trial court erred when it
attributed $6,000.00 to her as marital funds that she used to pay off the remainder of a
loan on a 2011 Mercedes Benz she purchased on June 27, 2012.
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{¶ 35} At trial, Wife testified that she borrowed the entire amount after the parties
separated in order to purchase the Mercedes. On December 11, 2012, Wife filed a
police report claiming that the vehicle had been stolen. Wife testified that she paid the
remainder of the loan balance after the insurance proceeds were applied. The record
establishes, however, that Wife did not adduce any evidence regarding the source of the
money that she used to pay the remainder of the car loan. Thus, the trial court found
that the $6,000.00 used to pay off the remainder of the loan on the Mercedes was indeed
marital funds and properly allocated the amount to Wife in the property division. As
noted by the trial court, Wife’s purchase of the Mercedes utilized marital funds after the
de facto termination date of the parties’ marriage. Accordingly, the trial court’s decision
to attribute $6,000.00 to her as marital funds was not an abuse of discretion.
{¶ 36} Wife’s fourth assignment of error is overruled.
{¶ 37} Wife’s fifth and final assignment of error is as follows:
{¶ 38} “THE TRIAL COURT ERRED IN DETERMINING PLAINTIFF-
APPELLANT’S EARNING CAPACITY, ALONG WITH THE AMOUNT AND DURATION
OF SPOUSAL SUPPORT.”
{¶ 39} In her final assignment, Wife argues that the trial court erred when it
determined the amount of spousal support because it incorrectly assessed her earning
capacity. Wife further argues that the duration of her spousal support order of six years
was too short based upon the length of the parties’ marriage.
{¶ 40} Regarding spousal support, we note that “[d]omestic relations courts are
granted broad discretion concerning awards of spousal support, and their orders will not
be disturbed on appeal absent an abuse of discretion.” Perry v. Perry, 2d Dist. Clark No.
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07–CA–11, 2008–Ohio–1315, ¶ 5.
{¶ 41} 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
fourteen factors expressed in R.C. 3105.18(C)(1)(a)-(n), which governs awards of
spousal support. “In allocating property between the parties to a divorce and in making
an award of sustenance alimony, the trial court must indicate the basis for its award in
sufficient detail to enable a reviewing court to determine that the award is fair, equitable,
and in accordance with the law.” Rief v. Rief, 2d Dist. Miami No. 06–CA–47, 2008–Ohio–
266, ¶ 6, citing Kaechele v. Kaechele, 35 Ohio St.3d 93, 97, 518 N.E.2d 1197 (1988).
{¶ 42} R.C. 3105.18(C)(1) sets forth the following factors for the trial court to
consider:
(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;
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(g) The standard of living of the parties established during the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not limited
to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training, or earning ability
of the other party, including, but not limited to, any party's contribution to the
acquisition of a professional degree of the other party;
(k) The time and expense necessary for the spouse who is seeking spousal
support to acquire education, training, or job experience so that the spouse
will be qualified to obtain appropriate employment, provided the education,
training, or job experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of spousal support;
(m) The lost income production capacity of either party that resulted from
that party's marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant and
equitable.
{¶ 43} Upon review, we conclude that the trial court's spousal support award of
$100.00 per month to Wife was both reasonable and adequate pursuant to the factors set
forth in R.C. 3105.18(C)(1). Evidence presented at trial established that Wife’s earning
ability lay somewhere between $32,400.00 and $43,100.00 annually. At trial, Husband
presented Wife’s bank statements from October of 2010, through April of 2012, to
establish her income prior to the parties’ separation. The evidence established that Wife
earned approximately $150.00 to $200.00 per day in tips as a bagger at the Air Force
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Base commissary. Wife testified that she did not claim any of her earnings from bagging
as taxable income.
{¶ 44} We also note that Wife testified that after the parties separated, she was
unable to work because of physical and emotional issues. Two witnesses, Colonel Scott
Farrar and Charles Berg, contradicted Wife’s testimony that she was not working.
Specifically, Col. Farrar testified that he last observed Wife working at the commissary as
a bagger in October of 2014. Berg testified that he is employed at the commissary as
the head bagger, and he also handles all of the employee scheduling. Berg testified that
Wife, at the time of the hearing, was in fact currently employed at the commissary as a
bagger. Berg testified that a bagger averaged between $.50 and $5.00 a tip. Berg also
testified that Wife had displayed no problems with showing up for work at the commissary.
Lastly, Berg produced Wife’s work schedules for 2013 and 2014. Based on the evidence
adduced, the trial court found that Wife works approximately eighteen days a month
earning an average of $150.00 per day, equal to an average annual income of
$32,400.00. Based on Wife’s bank statements, as well as the testimony of Col. Farrar
and Berg, the trial court found that Wife’s income was between $32,400.00 and
$43,100.00 per year. The trial court’s decision in this regard is supported by the record.
{¶ 45} Finally, although Wife disputes the trial court’s decision regarding the
amount and duration of the trial court’s spousal support order, she fails to provide any
argument that supports her assertion. Nevertheless, we note that Wife will receive
approximately $25,000.00 per year from Husband’s military retirement. Wife will also
receive approximately $50,000.00 in marital assets from Husband’s Thrift Savings Plan.
The record further establishes that Wife will have a potential yearly income of $58,000.00
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to $68,000.00, while Husband will have annual income of approximately $47,000.00.
Accordingly, the trial court’s decision to award Wife $100.00 per month in spousal support
is not unreasonable.
{¶ 46} Additionally, the trial court’s decision to award Wife spousal support for six
years is not abuse of discretion. Husband has been paying Wife temporary spousal
support since November of 2012. As previously noted, the Final Judgment and Decree
of Divorce was filed on June 2, 2016. Thus, Husband has paid temporary support for
four years, plus an additional six years per the permanent spousal support award, for a
total of ten years of spousal support. In light of the parties’ marriage of approximately
twenty–four years, the trial court’s decision to award Wife six years of permanent spousal
support was not an abuse of discretion.
{¶ 47} The trial court enjoys broad discretion when considering whether to award
spousal support. The crucial issue is to set a support award that is reasonable and
appropriate. McHenry v. McHenry, 2d Dist. Montgomery No. 20345, 2004–Ohio–4047, ¶
21. “[W]hile need and ability to pay remain important considerations for determining
what amount of spousal support is reasonable and appropriate, the term ‘need’ is an
elastic concept that differs from case to case, and that encompasses more than just
ensuring that the obligee spouse has the basic necessities of food, clothing, and
shelter.” Billingham v. Billingham, 2d Dist. Montgomery No. 18403, 2001 WL 127764, *4
(February 16, 2001). In light of the duration of the parties' marriage, their respective
incomes, and the term of support, we cannot say that the trial court abused its discretion
in finding the amount of Wife's spousal support award to be reasonable and appropriate.
{¶ 48} Wife’s fifth and final assignment of error is overruled.
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{¶ 49} All of Wife’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
David M. McNamee
Abdol-Reza Pirnia
Hon. Denise L. Cross