Berger v. Berger

2015 Ohio 5519

• Court: Ohio Court of Appeals
• Decided: December 31, 2015
• Docket: 2014-G-3191
• Status: Published

Opinion

[Cite as Berger v. Berger, 2015-Ohio-5519.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

SANDRA L. BERGER, : OPINION

Plaintiff-Appellant, : CASE NO. 2014-G-3191 - vs - :

THEODORE J. BERGER, JR., et al., :

Defendant-Appellee. :

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 12 D 000254.

Judgment: Affirmed in part; reversed in part and remanded.

Gary S. Okin, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville, OH 44077 (For Plaintiff-Appellant).

Deanna L. DiPetta, Andrew A. Zashin, and Amy M. Keating, Zashin & Rich Co., L.P.A., Ernst & Young Tower, 950 Main Avenue, 4th Floor, Cleveland, OH 44113 (For Defendant-Appellee).

THOMAS R. WRIGHT, J.

{¶1} Appellant Sandra L. Berger (“Wife”) appeals the trial court’s divorce

decree asserting that the trial erred in valuing Dreison International, Inc. (“Dreison”), a

portion of which is marital property. Wife also claims that the trial court erred in

excluding testimony of a witness, determining an equitable division of property,

determining the amount and duration of spousal support awarded to Wife, not awarding

her attorney fees, and failing to provide adequate security for her property award. For the following reasons, we reverse the trial court’s decision in regard to the amount and

duration of spousal support. We also reverse the trial court’s decision as to its

valuation of the business based on its erroneous exclusion of relevant evidence, and

reverse and remand regarding the trial court’s failure to provide Wife adequate security

for her future property award installments. All other aspects of the judgment are

affirmed.

{¶2} Wife filed for divorce from Theodore J. Berger (“Husband”), and a trial was

held in February of 2013 before a magistrate. The magistrate found that Dreison

should be valued at approximately $7 million with the marital portion valued at

approximately $4 million. The magistrate also awarded Wife spousal support in the

amount of $5,000 for 90 months and concluded that Husband must pay Wife

approximately $1.9 million on an established payment plan to equalize the division of

property. Each side was ordered to pay their own attorney fees. The trial court

adopted the magistrate’s opinion in full, and this appeal followed.

{¶3} Wife asserts five assignments of error. We address her first and second

assigned errors out of order for ease of analysis. Her second assigned error asserts:

{¶4} “The trial court erred and abused its discretion by granting Appellee’s

Motion in Limine, thereby excluding the testimony of Gary Wilson.”

{¶5} Before trial, Gary Wilson, a friend and former employer of Wife made an

offer to purchase Dreison from Husband. Husband then filed a motion in limine and

show cause asserting that Wife had violated a protective order prohibiting the

dissemination of information about Dreison by sharing said information with Wilson.

Husband claimed that any testimony concerning Wilson’s value of the company should

2 have been excluded. Wife did not file a response or proffer any testimony that Wilson

might offer. Husband filed a supplemental brief asserting further reasons to exclude

Wilson’s testimony. The magistrate summarily granted the motion. However, Wife

filed a motion to set aside the order on the basis that Wilson could testify as a lay

witness to the value of the company due to Wilson’s alleged offer to buy Dreison. The

magistrate denied this motion without further explanation. The magistrate

subsequently explained at trial that Wilson’s offer to buy the company was not relevant

because Husband was not a willing seller and since Wilson might not “pony up the

money because it’s not for sale.”

{¶6} Evid.R. 401 states: “‘Relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.”

Evid.R. 402 states that all relevant evidence is generally admissible. Although Evid.R.

403 will exclude evidence whose probative value is substantially outweighed by its

prejudicial effect, Husband has not made any argument that the evidence should be

excluded per Evid.R. 403. Wilson’s testimony concerning his offer to buy Dreison, if

admitted, would have a tendency to make the value of the company closer to Wilson’s

offer price. Although the magistrate’s concern over the genuineness of the offer could

be valid, this goes to the weight of the evidence, not the relevancy of the evidence.

Therefore, exclusion of the evidence based on relevancy was error.

{¶7} We review improper exclusions of evidence for harmless error. The

harmless error rule set forth in Civ.R. 61 provides:

3 {¶8} “No error in either the admission or the exclusion of evidence * * * is

ground for granting a new trial or for setting aside a verdict * * * unless refusal to take

such action appears to the court inconsistent with substantial justice. The court at

every stage of the proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.”

{¶9} In reviewing whether a substantial right of a party has been affected, the

reviewing court must decide whether the trier of fact would have reached the same

decision had the error not occurred. Petti v. Perna, 86 Ohio App.3d 508, 514, (3d

Dist.1993).

{¶10} “‘Ohio courts have not specified that only one method of valuation is

appropriate when dividing marital property.’” Kuper v. Halbach, 10th Dist. Franklin No.

09AP-899, 2010-Ohio-3020, ¶12. “Rather, an equitable division of marital property

depends upon the totality of the circumstances such that a flat rule for valuation is not

appropriate in a property division.” Id.

{¶11} “Ohio courts have recognized several methods for valuing a business,

including: (1) capitalization of net profits (or straight capitalization); (2) capitalization of

excess earnings; (3) the IRS method (known as the ‘formula’ approach), which

subtracts a reasonable rate of return on tangible assets and salary from average

earnings; (4) market value; and (5) buy-sell agreements. * * * When valuing a business,

a trial court is neither required to use a particular valuation method nor is precluded

from using any method.” (Internal citations omitted.) Id. at ¶13.

{¶12} Counsel for Wife proffered for the record that Wilson had reviewed the

financial performance and other information from Wife’s counsel about the company.

4 The proffer indicated that Wilson had offered to pay $12 million for the company for 80

percent of the stock, with Husband retaining 20 percent and agreeing to stay on for a

period of five years.

{¶13} Prior to this proffer, however, the magistrate asked Husband if his

company was for sale. He responded that it has never been for sale and would never

be for sale. The magistrate then stated: “So that’s not even relevant. An offer for sale

for a company that’s not even for sale? People can offer any kind of monetary amount

for a company that they’re never going to have to pony up the money for because it’s

not for sale.” The magistrate refused to allow Wilson’s testimony stating: “It can’t be a

real offer if there is not a business for sale.”

{¶14} To conclude that what Wilson was willing to pay for the company was not

relevant because the owner was not willing to sell disregards the ultimate issue–the

value of Dreison. This is evidence of valuation based on the market valuation

approach. Thus, Wilson’s testimony was relevant and the trial court erroneously

excluded it to Wife’s prejudice. Wilson reviewed the financial performance of the

company and received “other information” from Wife’s attorney. Wilson apparently had

significant knowledge if he was willing to pay $12 million for 80 percent of the company.

(This would translate into a $15,000,000.00 aggregate value as testified by wife.)

{¶15} Although there may have been issues regarding Wilson’s credibility as a

witness or concerns regarding how he arrived at this offer, these issues go to his

credibility and not to the relevance of his testimony, and as such, could have been

addressed on cross-examination.

5 {¶16} Therefore, the second assignment of error has merit. Wife was prejudiced

as a result of this improper exclusion of relevant evidence.

{¶17} As her first assignment of error, Wife asserts:

{¶18} “The trial court erred and/or abused its discretion in its valuation of

Dreison International, Inc. and its Subsidiaries (“Dreison”) and in its valuation of the

marital portion of Dreison.”

{¶19} Within this assignment, Wife asserts that the magistrate’s findings

concerning the valuation of Dreison and the marital portion of the business were

against the manifest weight of the evidence.

{¶20} “When determining the value of marital assets, a trial court is not confined

to the use of a particular valuation method, but can make its own determination as to

valuation based on the evidence presented. James v. James, 101 Ohio App.3d 668,

681, 656 N.E.2d 399 (2d Dist.1995). Thus, we must affirm a trial court's determination if

it is supported by competent, credible evidence and is not otherwise an abuse of

discretion. Moro v. Moro, 68 Ohio App.3d 630, 637, 589 N.E.2d 416 (8th Dist. 1990).”

Chattree v. Chattree, 8th Dist. Cuyahoga No. 99337, 2014-Ohio-489, 8 N.E.3d 390, ¶43

(8th Dist.)

{¶21} While the trial court is not bound to use one valuation method over

another, it is nonetheless restricted to the valuations in evidence. A trial court cannot

devise its own value that falls between the parties’ respective expert’s testimony.

Rodriguez v. Rodriguez, 11th Dist. Geauga No. 89-G-1498, 1990 Ohio App. LEXIS

1448, *4-5 (Apr. 13, 1990); McCoy v. McCoy, 91 Ohio App.3d 570, 578, 632 N.E.2d

1358 (8th Dist.1993) (holding that if the “trial court summarily arrives at a valuation of an

6 asset or property, even though between the two extremes of the opposing parties’

witnesses, without an evidentiary predicate, such would be error.”). Although a trial

court is free to choose between the values presented by the parties according to the

weight of the evidence, it is not free to deviate from the evidence before it. Focke v.

Focke, 83 Ohio App.3d 552, 556, 615 N.E.2d 327 (2d Dist.1992).

{¶22} For example, if wife’s expert determines that the value of a marital asset is

$10 million and the husband’s expert testifies that the value is $5 million, the court

cannot on that evidence alone set the value at $7.5 million. However, if wife’s expert

testifies that husband’s expert used an improper multiplier in reaching his valuation and

then provides an opinion as to the proper multiplier, the court could use either multiplier

in determining valuation, thereby reaching a differing value supported by the evidence.

McCoy, supra.

{¶23} The magistrate made the following findings in regard to the valuation of

Dreison:

{¶24} “23. Husband has a 99.85% ownership interest in Dreison International, a

privately held company whose headquarters are in Cleveland, Ohio. Dreison owns and

operates manufacturing companies in Ohio, Texas, Mexico, and China.

{¶25} “24. Dreison owns DCM Manufacturing, Inc., and Maradyne Corp. The

other component of Dreison is Von Weise, LLC, a single member Limited Liability

Company owned 100% by Maradyne.

{¶26} “25. DCM Manufacturing, Inc. specializes in manufacturing, sales, and

servicing of products for mobile HVAC units and industrial heat transfer markets. It

7 manufactures parts used in school buses, agricultural vehicles, construction, heavy

truck markets and marine markets.

{¶27} “26. Maradyne Corp. manufactures pumps, air and hydraulic starter

motors for oil rigs, filters, hydraulic motors used on heavy duty trucks, mining and

agricultural equipment, ATVs and boats.

{¶28} “27. Von Weise, LLC. designs and manufactures horsepower motors, gear

motors, actuators, and smaller gear parts used in ice machines, tread mills, hospital

beds, vending machines and medical examination tables. Von Weise, LLC. was

acquired, in June 2010. It's [sic] operations include zinc die casting and machining.

{¶29} “28. Husband owned approximately 10 shares of Dreison stock prior to the

parties’ marriage; his ownership in Dreison was partly gifted to him by his parents and

partly accumulated. The parties could not agree on a value for husband's share, or to

a value for the marital portion, i.e. the appreciation in value of the business during the

marriage.

{¶30} “29. Both parties retained experts to establish the fair market value of

Husband's 99.85% equity interest in Dreison, on a controlling basis as of June 30,

2011, and to determine the value of the marital share of the equity interest. Husband

hired John D. Davis (Davis & Company) to value the business. Wife originally hired

Eddie Blaugrand, but dismissed him and then hired Robert A. Ranallo (Skoda Minotti).

{¶31} “30. Both experts presented testimony as to the value of Husband's

interest in Dreison. They each opined as to the perceived errors contained in the

opposing expert’s report and the analysis conducted by the opposing expert.

8 {¶32} “31. Mr. Ranallo determined that the fair market value of Dreison and it’s

[sic] subsidiaries is $10,500,000.00 and the fair market value of the marital portion is

$9,387,672.00.

{¶33} “32. Mr. Davis determined that the fair market value of Dreison is

$7,006,375.00 and the fair market value of the marital portion is $4,029,686.00.

{¶34} “33. The experts are $3,493,625.00 apart in terms of their opinions as to

the fair market value of Dreison, and even farther apart with regard to their opinions as

to the value of the marital portion of the Company. In that regard the experts are

$5,357,986.00 apart.

{¶35} “34. Wife testified that she believes Dreison is worth $15,000,000.00

because her former employer and friend, Gary Wilson, made a written offer to buy it for

$15,000,000. She did not testify with regard to a lay opinion as to the value of the

marital portion.

{¶36} “35. The Courts are limited to choosing one valuation over the other, or

finding another valuation if the court can state a basis to achieve such a ‘middle of the

road’ estimate. In this case, the evidence and testimony at trial did not provide a basis

for an adjustment to the evaluations. The Court must choose either the business

evaluation of Mr. Ranallo or that of Mr. Davis.

{¶37} “36. Mr. Ranallo described Dreison as ‘a very diversified company’ with a

variety of products and a varied clientele. He described Dreison as a ‘multifaceted’

business which provides services to various segments of society. He opined that the

diversification of the company means less risk, because if one segment of Dreison

does not perform well, the other segments won't be affected. He testified that there

9 was some risk because Husband and a few other ‘key’ employees are so integral to the

Company's operation.

{¶38} “37. Mr. Davis described Dreison not as diversified, but instead

‘fragmented.’ He testified that a ‘diversified’ company is one that while it enters

different markets, it maintains a common core; and that a ‘fragmented’ company has no

common thread. He opined that the only common thread Dreison has with it’s (sic)

subsidiaries is it’s [sic] management team. He testified that DCM, Maradyme, and Van

Weise have nothing in common, that they serve different segments of the population,

that they have different clientel [sic].

{¶39} “38. Mr. Davis testified about the growth of Dreison. He explained that it's

(sic) growth was by acquisition, not through organic growth; it acquired different lines of

businesses. He testified that the problem with this type of growth is the company has

to increase it's [sic] debt by acquiring the businesses in order to grow. As a result, he

opined, the company is highly leveraged and carries a lot of debt on it’s [sic] books

which is risky because it may not have enough cash to cover the debt.

{¶40} “39. Mr. Davis explained during his testimony that part of the reason that

he valued Dreison at a lower fair market value was that Dreison’s debt increased, ($5.6

million) and that the debt causes a reduction in the fair market value of the company.

{¶41} “40. Both experts completed income and asset analysis in calculating their

respective evaluations of Dreison.

{¶42} “41. Mr. Ranallo also completed a market approach to the evaluation. Mr.

Davis testified that he considered the market approach, but decided that it would lead

to a dead end so did not complete a market analysis.

10 “Market Approach Valuing Dreison

{¶43} “42. The market approach in evaluating a business involves looking at

other similar companies and comparing them to determine the predictive value of what

the company might sell for.

{¶44} “43. Mr. Ranallo explained the use of Standard Industrial Classification

Codes (‘SIC codes’) when employing the market approach. He testified that the

purpose of using SIC codes it to try to group ‘like’ companies so they can be compared.

Information about a company is in-putted with regard to the subject company, in this

case, Dreison, and the computer finds ‘like’ companies to compare it to in order to

determine the predictive value of what Dreison might sell for.”

{¶45} “44. Mr. Ranallo completed the market approach analysis and found the

fair market value of Dreison to be $14,000,000.

{¶46} “45. Mr. Davis did not complete the Market approach analysis because he

found that due to the ‘eclectic’ nature of Dreison he could not find credible or reliable

comparables. He did not come up with a value using the market approach.

{¶47} “46. With regard to Mr. Ranallo's analysis using the Market approach, Mr.

Davis was critical of Mr. Ranallo's use of publically traded companies in comparison to

Dreison. He testified that the use of much larger, publicly traded companies in

comparison to a smaller privately held company leads to inaccurate and unreliable

results. He opined that the companies on the stock exchange have sales in the billions

and have $15 billion in capital compared to Dreison, which had sales of only $40 million

in 2011-2012. Mr. Davis testified that the use of SIC codes in this situation is wrong,

that Dreison can't be compared to regular ‘HVAC’ companies because, it’s [sic] HVAC

11 products are specified for mobile units. He testified that neither can it be compared to

‘Auto Parts Industries’ because it bears no relationship to the auto industry.

“Asset Approach Valuing Dreison

{¶48} “47. Both experts explained the Asset Approach to valuing a business as

being a measurement of the fair market value of all assets reduced by it’s (sic)

liabilities.

{¶49} “48. Mr. Ranallo completed an asset approach valuing Dreison at

$7,800,000.

{¶50} “49. Mr. Davis completed an asset approach valuing Dreison at

$6,522,751.

{¶51} “50. Neither expert relied on the asset approach when reaching their final

conclusion about the fair market value of Dreison.

“Income Approach Valuing Dreison

{¶52} “51. The experts explained that the Income Approach measures the

company's value based on the ability to generate cash flow indefinitely.

{¶53} “52. Mr. Davis testified that he used the ‘capitalization of earnings’ method

to consider the historical cash flow, i.e. what Dreison has done in it’s [sic] past. He

testified that it is key to look at the company's history in order to get a complete picture

of any company.

{¶54} “53. Mr. Davis then used the ‘discounted cash flow’ methodology to look

forward, to see what Dreison will do in the future. He looked at the projections Dreison

provided. He testified, and it was not disputed, that Dreison does not always provide

projections, [sic] instead it provides projections only when the bank requires it. Davis

12 opined that because Dreison only provides projections at the bank’s request, the

projections are ‘optimistic.’ He reviewed Dreison's projections for 2008, 2012, 2013,

and 2014 and found that the company did not meet it’s [sic] projections for 2008 or

2012. He opined that this is in part because the economy slowed down, but also

because the projections were not realistic to begin with, they were optimistic. He

testified that the further out projections go the less reliable they are and the more likely

to be inaccurate.

{¶55} “54. Mr. Ranallo testified that as he did his analysis using the income

approach he did not use the capitalization of earnings method to look back at the past

to determine how Dreison did historically. Instead he used only the discounted cash

flow methodology; looking at and relying only on the projections provided by Dreison.

He testified that because of the recession, looking back would not provide reliable

information.

{¶56} “55. Mr. Davis disagreed with Mr. Ranallo's use of only looking at the

future in terms of the projections and not ‘looking back.’ He testified that a buyer will

not buy based on ‘just’ projections, but will want to see what the company did

historically as well.

{¶57} “56. Mr. Davis relied on the income approach to arrive at his final value of

$7,006,375 for Dreison.

{¶58} “57. Mr. Ranallo used the income approach to reach his final valuation

finding that Dreison has a fair market value of $10,500,000.

“Valuation of the Appreciation (Marital Portion of Dreison)

13 {¶59} “58. As indicated above, Husband’s 99.85% ownership of Dreison was

partially gifted, and partially acquired or accumulated.

{¶60} “59. Husband’s original pre-marriage interest in Dreison came from his

parents. He received further gifts of stock from them in 1989 and 1997. By 1997,

Husband owned approximately 40% of Dreison. Husband then acquired his brother’s

interest in Dreison by spinning off one of the businesses, ‘Supertrapp’ to him in

exchange for his equity interest in the company. If for some reason, Supertrapp

defaults, Dreison could have contingent liability.

{¶61} “60. Mr. Ranallo contends that the marital portion of Dreison, i.e. it’s [sic]

appreciation, is valued at $9,387,672.00.

{¶62} “61. Mr. Ranallo testified that he relied on gift tax returns to calculate the

marital portion of the interest.

{¶63} “62. Mr. Davis, who found the fair market value of the marital portion to be

$4,029,686.00[,] testified that looking at the gift tax returns is useful, but he argues that

they should not be the only thing considered when determining the value of the marital

portion of Husband’s interest in Dreison.

{¶64} “63. Mr. Davis testified that an argument could be made that there has

been no appreciation. It was not disputed that from 1993-1997, Dreison had income of

$2,485,572.00 nor was it disputed that Dreison’s income decreased during the later

years 2007-2011 when Dreison had income of $1,165,794.00; a reduction in income of

$1,319,778.00.

{¶65} “64. Mr. Davis pointed out that Dreison is not performing as well now, as it

did in earlier years. In 1993-1997 Dreison made more money and was debt free, now it

14 makes less money and is full of debt. Mr. Davis opined that Husband now owns more

of a company that is worth less. He pointed out that the gift tax returns that were solely

relied on by Mr. Ranallo were from the tax years 1989 and 1997, years when there was

more income and less debt earlier.

{¶66} “65. Mr. Davis testified that in calculating the fair market value of the

marital portion of Dreison he considered the gift tax returns, then applied the

methodologies described earlier in this Decision. He calculated the equity value at

$5,002,931.00 then considered appreciation of Husband’s share to reach a final value

of $4,086,157.00.

{¶67} “66. Husband points out that while Mr. Davis conducted a site visit to

Dreison’s headquarters, Mr. Ranallo did not, [sic] instead he sent an associate to the

site. Mr. Ranallo’s failure to personally conduct a site visit does not make his evaluation

less credible.

{¶68} “67. Mr. Davis’s consideration of the capitalization of earnings in his

Income Approach, i.e. a look back at the historical cash flow of Dreison, in addition to

considering the company's projections; and his consideration that Dreison’s growth

was by acquisition as it bought lines of business which increased it’s [sic] debt, thereby

lowering it’s [sic] fair market value supports his finding that the fair market value of the

business is $7,006,375.00.

{¶69} “68. Mr. Davis's consideration of the gift tax returns, and his analysis using

the methodologies and income approach, along with his consideration of the fact that

Dreison is not performing as well as it did before, in that it is earning less income and

15 incurring more debt, supports his finding that the fair market value of the marital portion

of the business is $4,029,686.00.”

{¶70} Under the manifest weight of the evidence standard, “[j]udgments

supported by some competent, credible evidence going to all the essential elements of

the case will not be reversed by a reviewing court as being against the manifest weight

of the evidence.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202 ¶24, 865

N.E.2d 1264, quoting C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376

N.E.2d 578 (1978), syllabus. “A finding of an error in law is a legitimate ground for

reversal, but a difference of opinion on credibility of witnesses and evidence is not.” Id.

quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 81, 10 Ohio B. 408,

461 N.E.2d 1273 (1984).

{¶71} First, Wife argues that the magistrate’s valuation was in error because

Wife testified that she believed that Dreison is worth $15,000,000 as Wilson, a former

employer and friend, made an offer to buy Dreison for that amount. Consequently,

because, according to Wife, the making of an offer is the best way to determine the

valuation, the trial court erred in not accepting the $15,000,000 figure. Although her

argument ignores the fact that the trial court was free to credit the testimony of experts

over hers as to the value of the company, Wife is correct that the trial court failed to

allow Wilson’s testimony on this issue.

{¶72} Next, Wife argues that that the trial court erred in accepting the

conclusions of Husband’s expert witness (Davis) over that of Wife’s expert witness

(Ranallo) as to the valuation of Dreison. First, Wife argued the lower court erred in not

concluding that Ranallo was more qualified than Davis because Ranallo, unlike Davis,

16 was previously appointed as a special master to perform complex business valuations.

It is not immediately apparent why such an appointment makes Ranallo’s testimony

more credible than Davis in all valuations, and Wife fails to provide any such reason or

case law in support of her claim. Therefore, this reason cannot support Wife’s

argument that the trial court erred.

{¶73} Next, Wife argues that Davis’s statement that Ranallo’s expert report was

“solid” should be given significant weight because it was an unsolicited observation

between professionals. This argument fails to show the trial court erred. Given the

disagreements between Davis and Ranallo concerning the valuation of Dreison, the

weight of evidence does not indicate Davis’s comment was an endorsement of

Ranallo’s report in full.

{¶74} Next, Wife argues that Davis’s credibility is diminished because he had

been paid $18,000 for his services as of the date of his trial. Husband’s payment for

Davis’s services as an expert does not, as a matter of law, render Davis incredible.

{¶75} Next, Wife argues that Davis’s conclusions are less credible than

Ranallo’s conclusions because Davis, unlike Ranallo, never expressly stated his

conclusions were made with a “reasonable degree of certainty” for individuals in his

field of expertise. Wife has provided no case law supporting her claim that an expert’s

failure to utter these magic words renders his testimony less credible than another

expert who did say these magic words. Wife has failed to demonstrate error.

{¶76} Next, Wife argues that the magistrate erred in concluding that Davis’s

testimony indicated that Dreison’s debt lowered its fair market value. Because the

magistrate relied upon Dreison’s increased debt as a basis for reaching its valuation of

17 the company, Wife posits this misinterpretation is grounds for reversal. Both parties

agree that Davis testified that Dreison’s 2012 financial statements reflect Dreison had

acquired $5.6 million in debt to purchase Green Lease Manufacturing, Inc. According

to Wife, Davis testified that acquisition of this debt would not negatively impact the fair

market value of the company because the debt was acquired with the purchase of an

asset. Consequently, according to Wife, Davis conceded from an asset valuation

standpoint there would be no reduction in value of the company, and that the new

asset would provide revenue to support the new debt.

{¶77} Wife’s argument grossly misstates Davis’s testimony. First, Davis testified

that an income approach analysis, rather than an asset valuation, was the appropriate

valuation method. Second, Davis unequivocally states several times that he was of the

view that from a cash flow perspective, the debt would negatively impact the

company’s fair market value.

{¶78} Next, Wife argues that Davis’s concession that he did not complete the

market valuation approach makes his expert opinion worthless. As a preliminary

matter, Wife acknowledges that the evidence indicates that Davis is only required to

consider and not complete all three of the market valuation approaches. Davis’s

testimony indicates that he believed that there were no similar companies to Dreison

on the market. Because the market valuation approach requires an expert to compare

the company in question to other similar companies to determine a value for the

company, it is not a surprise that Davis did not complete a market valuation approach.

Consequently, the trial court’s decision to reject that approach is supported.

18 {¶79} Next, Wife argues that Davis was an incredible witness because one of his

valuations of Dreison is lower than an asset valuation approach. Both parties admit

that the asset valuation approach represents the “floor value” of the company and that

Davis’s asset valuation approach yielded a value of $6,522,751. According to Wife,

Davis’s conclusion for the value of the company for the income based approach was

approximately $2 million lower than Davis’s value based on the asset valuation

approach. However, upon review of Davis’s report, it appears that Wife incorrectly

referenced a component of Davis’s income based approach rather than Davis’s

ultimate value for an income based approach, which was approximately $1 million

greater than Davis’s value for the asset valuation approach. Therefore, Wife’s

argument has no factual basis.

{¶80} Next, Wife argues that the magistrate’s finding that “Ranallo testified that

as he did his analysis using the income approach he did not use the capitalization of

earnings method to ‘look back’ at the past to determine how Dreison did historically”

implied that Ranallo did not perform a historical analysis of Dreison when performing

an income valuation approach, when Ranallo did perform such an analysis. However,

Wife’s argument is misplaced because she does not quote the remaining part of the

paragraph after the quoted sentence. The magistrate continued that “[Ranallo] used

only the discounted cash flow methodology; looking at and relying only on the

projections provided by Dreison. He testified that because of the recession, looking

back would not provide reliable information.” Consequently, the magistrate’s findings

cannot be read to imply that Ranallo did not include any historical data in the income

19 valuation approach, but rather that such information was limited to projections in the

discounted cash flow methodology. Accordingly, Wife’s argument has no factual basis.

{¶81} Next, Wife asserts that the magistrate omitted facts relating to the

marketability discount to the value in the discounted cash flow method. However, Wife

fails to explain why such an omission demonstrates reversible error. Wife’s “argument”

merely points out that the magistrate did not include something in her decision.

{¶82} Next, Wife argues that Davis’s marketability discount1 was incredible for

two reasons. First, Wife argues that it was too high (21.3 percent) given that Husband

was a majority owner of Dreison and majority ownership results in a lower marketability

discount. Wife also argues Davis’s report improperly relied upon studies from minority

controlling owners because Husband was a majority owner. Husband asserts that

these facts do not indicate Davis’s report was invalid because Davis explained that the

“fragmented nature” of Dreison meant it would take a longer time to sell causing his

marketability discount to increase. In regard to the use of studies involving minority

owners, Davis testified that the use of the studies were appropriate in calculating the

marketability discount because the stocks at issue in Dreison were restricted stocks,

and according to Davis, the restricted nature of the stocks affected the marketability

discount whereas the minority position of the stocks were “of no consequence

what[so]ever to this analysis.” The magistrate had discretion to accept Davis’s

explanation for the use of the minority owner studies as credible or incredible, and

therefore Wife has failed to demonstrate error.

1. A marketability discount measures the difficulty in selling a closely held company and the associated costs in proceeding to sale. It is used in all methods of valuing a company.

20 {¶83} Finally, Wife argues that Shannon Pratt, “the undisputed and

acknowledged expert with respect to business evaluation procedure” according to Wife,

would not approve of Davis’s methodology in his report and therefore the magistrate

should have rejected Davis’s analysis. This argument is without merit. The magistrate

was not bound to accept Pratt’s methodology regarding business evaluation procedure

because of his reputation.

{¶84} Accordingly, and as stated under the second assigned error, we find the

trial court erred in accepting the magistrate’s decision regarding the valuation of

Dreison in light of the exclusion of Wilson’s testimony.

{¶85} Wife also challenges the valuation of the marital portion of Dreison as

{¶86} First, Wife claims that Davis erred in conducting an independent analysis

of the appreciation value of the marital portion of Dreison. Instead she claims he

should have relied on the value of the stocks as reported on gift tax returns. According

to Wife, Husband’s use of two different values for the stock during the same period

represents an inconsistent statement that makes Davis’s calculation of the report

unreliable. This argument is without merit. Davis testified that it would be improper to

rely solely on the gift tax returns as evidence of the fair market value of the stocks and

that it was important to conduct an independent analysis to determine the value of the

stocks. The trial court was free to credit Davis’s testimony.

{¶87} Next, Wife argues the magistrate erred in accepting Davis’s report

because his analysis failed to meet “current standards” in conducting a business

valuation. In support of this assertion, Wife claims that part of Davis’s report

21 acknowledges that his analysis is not compliant with current valuation standards.

However, our review of Davis’s report reveals that he was criticizing the valuation

performed by Meade & Moore as noncompliant with current valuation standards.

Therefore, this argument lacks a factual basis.

{¶88} Next, Wife argues that Davis’s report contains no discussion of the

company background or information “regarding the Economic and/or Business and

Industry Outlook” in 1997. According to Wife, Davis testified that both were to

demonstrate that a report complies with current valuation standards. However, Wife

provides no citation to the record to support her claim regarding Davis’s testimony.

App.R. 16(A)(7) requires a brief to provide citations to the record where necessary.

Although the court disfavors punishing a party who accidentally fails to provide a

citation to the record, the transcript in this case is voluminous and contains no word

index. Therefore, we will not evaluate this argument. Even if a citation to the record

were provided, Wife provides no explanation as to how these omissions materially

affected Davis’s valuation of the company. Therefore, Wife has not shown that any of

the alleged omissions demonstrates error.

{¶89} Next, Wife argues that the magistrate claimed that Davis only relied upon

an income approach to value appreciation, but the magistrate claimed that Davis relied

upon an asset and market approach as well. Even if this claim is true, Wife fails to

demonstrate how the magistrate’s statement demonstrates reversible error as the trial

court was not required to use a particular valuation method in reaching its

determination of value. Chattree v. Chattree, 8th Dist. Cuyahoga No. 99337, 2014-

Ohio-489, ¶43.

22 {¶90} Next, Wife argues that Davis used a different value figure for Dreison to

calculate the marital portion of the asset from the value he ascribed to the company in

the rest of his report, and that this practice, according to Wife, contradicts Davis’s

testimony regarding “current standards” for valuation. Wife provides no citation to

record as to what “current standards” require for valuation and Wife provides no

definition as to what are the “current standards” for valuation. Accordingly, under

App.R. 16(A)(7), we will not evaluate this argument.

{¶91} Finally, Wife argues that Davis’s calculations for the marital portion are

incorrect because the value of all of the stock gifts made to Husband in the years

preceding 1997 were valued at the 1997 level for stocks. Without citation to the record,

Wife claims that “[i]t is beyond question” that the value of the stocks preceding 1997

was “probably less” or at least different. We will not assume facts about the value of

the pre-1997 value of stocks to reverse the trial court, as we are limited to the record

on appeal. App.R. 9(A)(1). Wife had the responsibility of procuring these facts at the

lower court to lay the foundation for her appeal.

{¶92} The first assignment of error has merit in light of our conclusion that the

trial court improperly excluded relevant evidence as to the company’s value. On

remand, the trial court shall revisit its valuation of Dreison and consider not only the

parties’ respective experts’ testimony and assessments, but also must allow Wilson to

testify about his offer to buy the company and his bases for said offer. Thereafter, the

trial court must re-determine the valuation of Dreison as well as the value of the marital

portion of Dreison.

{¶93} As her third assignment, Wife asserts:

23 {¶94} “The trial court erred with respect to its orders relating to the payment of

funds necessary to equalize the property division herein.”

{¶95} As part of the division of property, the magistrate ordered Husband to pay

Wife approximately $1.9 million to ensure the property division was equitable. Because

the magistrate found that Husband did not have the ability to pay the award

immediately, the magistrate established a payment schedule for the award to be paid

over 12 years. The magistrate did not, however, order that Husband pay any interest

on future payments under this schedule.

{¶96} On appeal, Wife asserts that the trial court erred in not awarding interest

on the future payments in accordance with R.C. 1343.03(A). That section states:

“when money becomes due and payable upon all judgments, decrees, and orders of

any judicial tribunal for the payment of money arising out of tortious conduct or a

contract or other transaction, the creditor is entitled to interest at the rate per annum

determined pursuant to section 5703.47 of the Revised Code * * *.” As we understand

it, Wife claims that the issuing of the judgment causes the entire balance of $1.9 million

to become “due and payable.” In support of her assertion Wife directs our attention to

Fisher v. Fisher, 8th Dist. Cuyahoga No. 95821, 2011-Ohio-5251, and Humphrey v.

Humphrey, 11th Dist. Ashtabula No. 2006-A-0083, 2007-Ohio-6738. In those cases,

the respective appellants were attempting to collect interest on money that had not

been paid on the specified due date in the judgment for divorce. Humphrey, at ¶46-47;

Fisher, at ¶2, 24-26.

{¶97} The situation here is markedly different. Under the terms of the

magistrate’s order, approximately $50,000 was due upon the filing of the judgment

24 entry of divorce, and installments of $150,000 are due upon future dates until the $1.9

million balance is paid in full. Wife has not asserted that Husband has failed to comply

with any payments under the schedule; therefore, Humphrey and Fisher are

inapplicable to the current case. Furthermore, Wife’s allegation that she is entitled to

interest on the future payments is without merit as trial courts are vested with discretion

in deciding when an amount of a judgment is due. McKay v. McKay, 2d Dist.

Montgomery No. 23702, 2010-Ohio-3348, ¶37. Because the trial court established a

payment plan, future payments are not due until the date specified in the magistrate’s

order. As R.C. 1343.03 is only applicable when judgments become “due,” Wife’s claim

for interest on the future payments is without merit.

{¶98} Next, Wife argues that the trial court erred in failing to provide sufficient

security for the funds being used to equalize the property division. Specifically, Wife

argues that the trial court should have required Husband to maintain a life insurance

policy as security for the funds. Wife acknowledges that the magistrate ordered a stock

pledge as security for the payments, but claims that “the Magistrate’s findings

concerning various loan covenants that exist with Appellee’s business lender, which

restrict certain of Appellee’s actions in the operation of Dreison, strongly suggest that

appellee’s shares of stock have already been pledged to the lender as collateral.” Wife

claims that the stock pledge is insufficient collateral given the stock’s suspected status

as collateral for other loans.

{¶99} A trial court is required to equitably divide the parties’ marital property, and

it is afforded wide discretion in fashioning its division. Saluppo v. Saluppo, 9th Dist.

Summit No. 22680, 2006-Ohio-2694, ¶7. As Wife contends, a trial court has discretion

25 to secure a property division by ordering a spouse to maintain a life insurance policy for

the other spouse’s benefit. Zaccardelli v. Zaccardelli, 9th Dist. Summit No. 26262,

2013-Ohio-1878, ¶42.

{¶100} In Budd v. Munka, 9th Dist. Summit No. 27057, 2014-Ohio-4185, ¶17, the

Ninth District Court of Appeals held that the trial court abused its discretion in

fashioning an award that was inequitable because it failed, in part, to order the

husband to provide security for the marital property award that was to be paid over the

course of ten years.

{¶101} Here, the trial court ordered Husband to make payments totaling

approximately $1.9 million as Wife’s portion of the property settlement. This sum was to

be paid over 12 years with the pledge of Dreison stock as her only security. While the

magistrate properly recognized the need to provide Wife with security, the court did not

take evidence on the adequacy of the stock pledge as security. However, there was

testimony that Dreison has significant debt. Although there is no evidence that the

stock has been pledged to a bank, it would not be unusual if it has been previously

pledged in light of the company’s substantial debt. Even if the stock is not pledged,

there is a significant concern whether it, standing alone, provides adequate security

since there are no limitations on Husband’s ability to encumber Dreison with additional

debt that could render the stock worthless. Thus, this argument has merit because

there is nothing establishing that the security ordered is adequate.

{¶102} Wife next asserts that the trial court excluded testimony concerning

whether Husband ever received an offer to buy Dreison and such testimony was

relevant to determine whether it was equitable to sell Dreison in dividing the property.

26 From there, Wife appears to assert that had this evidence been admitted, the trial court

would be required to order the sale of Dreison as an equitable division of property

instead of creating a 12-year payment plan to equalize the division of property.

{¶103} In regard to the offer to buy, Wife points to the following exchanges in the

transcript demonstrating error:

{¶104} “[Wife’s Trial Counsel:] You received an offer to settle, I mean to purchase

your company, did you not, in January of 2012?

{¶105} “[Husband:] No I did not.

{¶106} “Did you receive a communication indicating someone was interesting

(sic) in buying your business –

{¶107} “[Husband’s Trial Counsel:] Objection.

{¶108} “The Magistrate: Overruled.

{¶109} “[Wife’s Trial Counsel:] – in January 2012?

{¶110} “I received a copy of an email that had some numbers on a piece of paper.

{¶111} “The Magistrate: Well, is your company for sale?

{¶112} “Husband: My company has never been for sale. . . . It’s not for sale today

and will never be for sale.

{¶113} “The Magistrate: So that’s not even relevant. An offer for a sale of a

Company that’s not even for sale? People can offer any kind of monetary amount for a

company that they’re never going to pony up the money for because it’s not for sale.

{¶114} “[Wife’s Trial Counsel:] Did you ever indicate, sir that you would sell your

business for $10,000,000.00?

{¶115} “Objection.

27 {¶116} “Sustained.”

{¶117} Later on, during the direct examination of Wife, the following exchange

occurred:

{¶118} “[Wife’s Trial Counsel:] And what is your opinion as to the value [of

Dreison]?

{¶119} “I believe it’s worth $15,000,000.00.

{¶120} “And what do you base that on?

{¶121} “. . .

{¶122} “I base it on an offer that was made by Gary Wilson, a cash offer, that

would establish the value of [Husband’s] business, and it was in response to a meeting

that we had to talk about the valuation proposals in December when John said he

would sell the company –

{¶123} “Objection. . . .

{¶124} “Sustained.

{¶125} “ – for $10,000,000.00.

{¶126} Within these two exchanges, Wife’s trial counsel only asked about an offer

to buy Dreison once, and the trial court permitted the answer to that question to stand

over the objection of Husband’s counsel. If Wife’s complaint is in regard to the last

question directed at Wife, that portion of Wife’s testimony was properly excluded as

hearsay. Evid.R. 801(C), 802. Accordingly, Wife’s assertion is without merit.

{¶127} Next, Wife argues that the finding that Dreison was illiquid was against the

manifest weight of the evidence and that the magistrate abused its discretion in

establishing 12 years as the length of the payment plan because Dreison is not illiquid.

28 As we conclude the finding concerning Dreison’s liquidity is supported by the evidence,

there is no abuse of discretion.

{¶128} Wife first claims that the evidence shows that the magistrate ignored

evidence that Husband could give himself a raise and that the loan covenants did not

restrict Husband from increasing his salary. Wife’s characterization of that portion of

the transcript is misleading. In the cited section, Husband stated he possessed the

authority to increase his salary so long as bank loan covenants were not violated.

Husband did not testify that he possessed the ability to increase his salary. Wife also

argues that Husband used his company credit card to pay $5,000-$10,000 of personal

expenses, that such expenditures were “customary,” and that these expenditures were

one of the perks of business ownership. Although Wife’s characterization of the

testimony is accurate, Wife ignored Husband’s testimony that these personal

expenditures had to be paid back to the company and that he always paid back the

personal expenditures.

{¶129} Wife argues that Dreison’s ability to pay for the litigation in this matter2

proves that it does not have liquidity problems. This argument is not persuasive for two

reasons. First, Davis and Husband both provided evidence indicating that Dreison did

not have liquid assets. Although Dreison’s ability to pay for litigation expenses could

show that Davis’s and Husband’s evidence is incredible, the trial court could have also

concluded that Davis’s and Husband’s evidence is credible and that this litigation has

only exacerbated the liquidity problems with Dreison. Consequently, there is

competent credible evidence supporting the magistrate’s finding concerning Dreison’s

liquidity and Wife’s arguments are without merit.

2. Although not a party to this appeal, Dreison was a named defendant to the trial court below.

29 {¶130} Next, Wife argues that the trial court abused its discretion in not requiring

Husband to pay a lump sum judgment to her in the event Dreison is sold. Ohio law

requires courts to divide property equitably between the parties in a divorce. R.C.

3105.171(B). This, in most cases, requires the court to divide property equally. R.C.

3105.171(C)(1). The court enjoys broad discretion in fashioning an equitable division

of marital property and its determination in crafting such an award will not be disturbed

absent an abuse of that discretion. Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541

N.E.2d 597 (1989). The term “abuse of discretion” is one of art, “connoting judgment

exercised by a court which neither comports with reason, nor the record.” State v.

Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30. This court has

previously observed that when an appellate court is reviewing a pure issue of law, “‘the

mere fact that the reviewing court would decide the issue differently is enough to find

error * * *. [In] contrast, where the issue on review has been confined to the discretion

of the trial court, the mere fact that the reviewing court would have reached a different

result is not enough, without more, to find error.’” Sertz v. Sertz, 11th Dist. Lake No.

2011-L-063, 2012-Ohio-2120, ¶31, quoting State v. Beechler, 2d Dist. Clark No. 09-

CA-54, 2010-Ohio-1900, ¶67. Wife reasserts her concern that Husband may have

already pledged his shares of stock as security to the bank for its loans to Dreison.

{¶131} She also argues that if Husband is not required to make a lump sum

payment to her upon the sale of Dreison, he could simply substitute the security

instead of paying a lump sum upon the sale of Dreison. As previously stated, we agree

that the trial court erred in failing to provide Wife adequate security.

30 {¶132} Accordingly, the third assignment of error has merit to the extent that the

trial court on remand must provide Wife adequate security for the future installments of

her property settlement other than the pledge of stock. Moreover, the court may, if it

chooses, require a lump sum payment upon sale as a portion of adequate security.

{¶133} As the fourth assignment of error, Wife asserts: “The trial court erred

and/or abused its discretion with respect to both the amount and term of spousal

support awarded to Appellant.”

{¶134} In general, an award of spousal support is within the discretion of the trial

court and will not be disturbed absent an abuse of that discretion. Tremaine v.

Tremaine, 111 Ohio App.3d. 703, 706, 676 N.E.2d 1249 (2d Dist.1996).

{¶135} First, Wife claims that her bachelor’s degree in business from the College

of William and Mary has “no application in today’s marketplace.” This argument is not

true. Wife also claims that the magistrate failed to include in her findings that Husband

was at one point a certified public accountant. Although this is true, it is not apparent

how this omission would affect the award of spousal support, and therefore, even if this

constituted error, it is harmless error.

{¶136} Next, Wife claims that her training through the Chopra Center is not highly

marketable. However, Wife testified that she had not looked for opportunities in Ohio,

and she appeared to solely focus on relocating to California. Therefore, the magistrate

could have concluded that Wife’s opinion as to the opportunities in Ohio was a result of

her lack of research rather than a lack of opportunity.

{¶137} Next, Wife claims that the magistrate’s finding that the Wife’s credit card

debt was separate debt conflicts with her finding that Wife’s classes with the Chopra

31 Center were paid with marital money because these classes were paid with the same

credit cards. However, this argument overlooks the reasons why the magistrate found

that credit card as separate debt. Specifically, Husband did not know of these credit

cards, and the expenditures incurred were for luxuries and not necessities.

{¶138} Next, Wife asserts that the magistrate’s findings that (1) if Wife had

continued working as a secretary when she first met Husband, Wife might be making

$60,000-$90,000 and (2) Wife would need 7.5 years to develop the necessary skills to

become a secretary or become a yoga or meditation teacher are unsupported by the

record. Husband has not directed our attention to any portion of the record that

contradicts Wife’s assertion. Our review of the record reveals that there is no evidence

concerning the time necessary for Wife to enter the secretarial pool or monetize her

yoga/meditation training. Consequently, we find that this finding is unsupported by the

record, and therefore the trial court did not properly consider Wife’s future income or

the time necessary for Wife to become self-sufficient. Therefore, in this regard, the trial

court abused its discretion in fashioning a spousal support award.

{¶139} Next, Wife asserts that the magistrate neglected Husband’s ability to

increase his salary at Dreison in fashioning a spousal support award. As previously

explained, the magistrate was free to find that Husband did not possess the ability to

increase his salary and consequently, this argument is without merit.

{¶140} Next, Wife implicitly argues that the magistrate’s finding that the parties

lived an “upper-middle class” lifestyle is incorrect because the parties were rich.

Assuming this is error, it is not apparent how the parties being labeled as “rich” affects

32 the lower court’s decision. Therefore, at best, the magistrate’s description is harmless

error.

{¶141} Next, Wife argues that the trial court abused its discretion in accepting the

magistrate’s decision because the permanent award of spousal support is lower than

the temporary award of spousal support. This argument is without merit as a trial court

does not abuse its discretion in awarding a permanent spousal support award that is

lower than the temporary spousal support award. See Grein v. Grein, 11th Dist. Lake

No. 2009-L-145, 2010-Ohio-2681, ¶63 (temporary spousal support awards are used to

maintain the status quo); Justice v. Justice, 12th Dist. Warren No. CA2006-11-134,

2007-Ohio-5186, ¶20 (noting that parties are not entitled to the same standard of living

as during the marriage).

{¶142} Next, Wife argues that the magistrate’s conclusion that Wife should or

could derive income from the spousal support and property division is incorrect given

“the parties’ lifestyle, the cost of maintaining the home allocated to [Wife], and her lack

of income.” As Husband points out, this simply is not true. Under the property division

payment schedule, Wife will receive $150,000 tax free, and an additional $60,000

through spousal support per year. Therefore, before factoring in any income Wife may

receive from being employed, Wife will in the worst case receive $210,000 annually,

which is only $40,000 less than Husband’s salary. Because a party is not entitled to

the same standard of living as they had during the marriage, the magistrate’s finding is

supported by the record.

{¶143} Finally, Wife asserts that the trial court abused its discretion by not

ordering an indefinite spousal support award because several cases demonstrate that

33 trial courts do not abuse their discretion in awarding indefinite spousal support when

the marriage is of a long duration. See, e.g., Lepowsky v. Lepowsky, 7th Dist.

Columbiana Nos. 08 CO 10, and 08 CO 29, 2010-Ohio-1544, ¶62. However, none of

Wife’s cases support the proposition that a trial court abuses its discretion when it

refuses to award indefinite spousal support for a marriage that was of a long duration.

Other Ohio courts have found that long marriages do not, as a matter of law, require

indefinite spousal support awards. See, e.g., Mann v. Mann, 4th Dist. Athens No.

09CA38, 2011-Ohio-1646, ¶35.

{¶144} Consequently, in regard to the trial court’s predication concerning Wife’s

future earning capabilities and the need for her to acquire new skills, the assignment of

error has merit. On remand, the trial court shall determine spousal support based on

the current record or take additional evidence to the extent permitted. See Civ.R.

53(D)(4)(b).

{¶145} As her fifth assignment of error, Wife asserts: “The trial court erred and/or

abused its discretion in denying an award of attorney fees and/or litigation expenses to

Appellant.”

{¶146} Within this assignment, Wife argues that the magistrate’s finding

concerning her earning potential as a secretary had she stayed employed is purely

conjecture, and that courts have upheld attorney fees awards when one party’s income

is significantly higher than another party’s attorney fees. Wife also implicitly attacks the

magistrate’s finding that Dreison was not liquid because Dreison could pay for its

participation in this litigation. Wife further argues that the magistrate’s finding that she

unnecessarily delayed the proceedings was without merit because, as we understand

34 it, none of the deadlines in the Rules of Superintendence were violated. Finally, Wife

protests the magistrate’s reliance on “need” and “ability to pay” in its decision had no

statutory basis.

{¶147} “Our review of the award of attorney fees is limited to determining (1)

whether the factual considerations upon which the award was based are supported by

the manifest weight of the evidence, or (2) whether the domestic relations court abused

its discretion. Neumann, 8th Dist. No. 96915, 2012 Ohio 591, at ¶ 6, citing Gourash v.

Gourash, 8th Dist. Nos. 71882 and 73971, 1999 Ohio App. LEXIS 4074 (Sept. 2,

1999), and Oatey v. Oatey, 83 Ohio App.3d 251, 614 N.E.2d 1054 (8th Dist.1992).

{¶148} “Pursuant to R.C. 3105.73(A), a court may award all or part of reasonable

attorney fees and litigation expenses to either party if the court finds the award

equitable. In determining whether such 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.’

R.C. 3105.73(B); Mlakar v. Mlakar, 8th Dist. No. 98194, 2013-Ohio-100.” Gentile v.

Gentile, 8th Dist. Cuyahoga No. 97971, 2013-Ohio-1338, ¶68-69.

{¶149} Wife’s arguments are without merit. First, Wife’s argument about the Ohio

Rules of Superintendence is without merit as a delay in the proceedings can occur

even though none of those rules are violated. Although we have previously noted that

the trial court’s finding concerning Wife’s potential salary if she had been employed is

unsupported by the evidence, Wife’s decision to fire an expert evaluator increased both

parties’ litigation expenses. As such, the trial court’s consideration of the unsupported

finding is harmless error. As to Wife’s liquidity argument, we have previously indicated

35 that argument is without merit. Finally, although “need” and “ability to pay” are not

express statutory factors for a trial court to consider, the catch-all provision in R.C.

3105.73 permits lower courts to consider these factors when determining whether

attorney fees should be awarded.

{¶150} The fifth assignment of error is without merit.

{¶151} In conclusion, the first, second, third, and fourth assignments of error have

merit as set forth in the opinion. In all other aspects, the trial court’s judgment is

affirmed. Accordingly, it is the judgment and order of this court that the judgment of the

Geauga County Court of Common Pleas is affirmed in part and reversed in part, and

this case is remanded for further proceedings consistent with the opinion.

TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.