[Cite as Beringer v. Beringer, 2014-Ohio-5232.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JAMES BERINGER JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2013 CA 00236 DENISE BERINGER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2011 DR 01264
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 24, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID E. BUTZ LORRIE E. FUCHS KRUGLIAK, WILKINS, GRIFFITHS Post Office Box 35787 & DOUGHERTY Canton, Ohio 44735 4774 Munson Street, NW Post Office Box 36963 Canton, Ohio 44735-6963 Stark County, Case No. 2013 CA 00236 2
Wise, J.
{¶1}. Appellant Denise Beringer appeals from her divorce in the Stark County
Court of Common Pleas, Domestic Relations Division. Appellee James Beringer is
appellant's former spouse. The relevant facts leading to this appeal are as follows.
{¶2}. Appellant and appellee were married on May 31, 2007. One child was
born of the marriage. Divorce proceedings between appellant and appellee were
commenced in 2010 and 2011, but in both instances the complaints and counterclaims
were dismissed.
{¶3}. On October 11, 2011, appellee filed a complaint for divorce. Appellant
thereafter filed an answer and counterclaim. The trial court set temporary orders of child
support at $1,800.00 per month and spousal support at $3,500.00 per month.
{¶4}. The case was originally set for trial on August 20, 2012. As further
discussed infra, the trial was continued until December 2012, continued a second time
until January 2013, and continued again until it was heard over the course of two days
before a magistrate on March 25, 2013 and May 13, 2013.
{¶5}. On September 11, 2013, the magistrate issued his decision granting the
parties a divorce. Among other things, the magistrate found that the de facto termination
of marriage date was August 20, 2012, although appellant had argued that the
termination date of marriage should be the date in which the matter came on for
hearing, March 25, 2013. In addition, appellee was ordered to pay child support, as well
as tuition to St. Michael's School (or the equivalent) for the parties' daughter. The
magistrate also recommended that appellee pay appellant spousal support in twelve
monthly installments of $11,477.57 starting September 1, 2013. Appellee was to Stark County, Case No. 2013 CA 00236 3
maintain health and life insurance for the child. The magistrate further awarded the
marital residence on Thornwood Street to appellee, with appellee paying appellant
$45,844.00 upon transfer of a quitclaim deed. The magistrate also made
recommendations regarding marital property and separate property. Neither party was
awarded attorney fees by the magistrate.
{¶6}. On September 20, 2013, appellant filed an objection to the magistrate's
decision.
{¶7}. On October 30, 2013, the trial court conducted a hearing on appellant's
objection.
{¶8}. Upon review, the trial court approved the magistrate's decision on
November 5, 2013, with four exceptions. First, there was a clarification of certain items
in the division of personal property, including a desk, chair, and filing cabinet. Second,
the court altered the attorney fee decision, ordering appellee to pay an additional $8,000
as appellant's attorney fees, to be paid within 30 days. Thirdly, the trial court ordered
that the pro rata portion of the 2012 profit sharing contribution, in the amount of
$22,000, was marital property and would be divided equally. Finally, the court found the
personal checking accounts to be marital property, and ordered those assets to be
equalized.
{¶9}. Appellant filed a notice of appeal on December 3, 2013. The trial court
issued a final decree of divorce on December 2, 2013. Appellant thereafter filed an
amended notice of appeal. She herein raises the following five Assignments of Error:
{¶10}. “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DETERMINED THE DE FACTO TERMINATION DATE OF MARRIAGE TO BE Stark County, Case No. 2013 CA 00236 4
AUGUST 20, 2012, AND NOT THE DATE WHEN THE CASE WAS HEARD BEFORE
THE COURT.
{¶11}. “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED
TO INCLUDE IN MARITAL PROPERTY AMOUNTS APPELLEE HAD EXPENDED ON
A (SIC) APPELLEE'S MARITAL DEBT TO A FORMER SPOUSE AND PAYMENTS
FOR APPELLEE'S OTHER ADULT CHILDREN, THEREBY REDUCING THE MARITAL
PROPERTY TO BE EQUITABLY DIVIDED WITH APPELLANT.
{¶12}. “Ill. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS
DETERMINATION OF AMOUNT AND DURATION OF SPOUSAL SUPPORT.
{¶13}. “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SIGNED
OVER THE OBJECTIONS OF THE APPELLANT A FINAL DECREE WHICH
CONTAINED A PROVISION WHICH WAS NOT ADDRESSED BY THE MAGISTRATE
NOR APPELLEE ON OBJECTION.
{¶14}. “V. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
THE VALUE OF MIXES (SIC) ASSETS WHICH WERE PART OF THE MARITAL
ESTATE.”
I.
{¶15}. In her First Assignment of Error, appellant argues the trial court erred in
establishing the term of the parties' marriage, particularly by using the first scheduled
trial date as the de facto termination of marriage date. We disagree.
{¶16}. R.C. 3105.171(A)(2) provides that, except when the court determines that
it would be inequitable, the date of the final hearing is usually the date of termination of
the marriage. Thus, R.C. 3105.171(A)(2) creates a statutory presumption that the Stark County, Case No. 2013 CA 00236 5
proper date for the termination of a marriage, for purposes of the division of marital
property, is the date of the final divorce hearing. Bowen v. Bowen (1999), 132 Ohio
App.3d 616, 630, 725 N.E.2d 1165. Therefore, it is presumed the date of the final
divorce hearing is the appropriate termination date of the marriage. Glick v. Glick
(1999), 133 Ohio App.3d 821, 828, 729 N.E.2d 1244. However, the trial court has broad
discretion in choosing the appropriate marriage termination date and this decision
cannot be disturbed on appeal absent an abuse of discretion. See Berish v. Berish
(1982), 69 Ohio St.2d 318, 321, 432 N.E.2d 183. A trial court should review the totality
of the circumstances in determining the appropriateness of a de facto termination date.
See Boggs v. Boggs, 5th Dist. Delaware No. 07 CAF 02 0014, 2008-Ohio-1411, ¶ 66.
{¶17}. The record in the case sub judice reveals that the first trial date of August
20, 2012 was continued, upon the request of appellant, so that she could obtain new
counsel. A new trial date was set for December 17, 2012. However, the matter was then
continued from the December date to January 25, 2013, apparently because the
magistrate was ill. However, on January 17, 2013, appellant's second counsel filed a
motion to withdraw from representation. The trial court granted the withdrawal of
counsel and continued the trial until March 25, 2013.
{¶18}. Appellant presently seeks to portray the marriage termination date issue
as an instance of the trial court punishing her for changing counsel, which she maintains
were based on fee disputes or conflicts of interest. See Appellant's Brief at 9. However,
the record indicates that appellant and her first attorney "were not seeing eye to eye on
things," (Tr., January 23, 2013, at 11) and her second attorney told the court that her
client had lost confidence in her representation, although it appears some fee issues Stark County, Case No. 2013 CA 00236 6
may have been involved (id. at 3). Moreover, the magistrate patently considered the
totality of the circumstances, over and above the continuance factor. The magistrate
noted, for example, that appellee was forced to seek an order to obtain income tax
information and an order to compel discovery on July 31, 2012, that appellant refused to
provide the book she had written in spite of a stipulated order dated September 11,
2012, and that testimony indicated that the parties had no relations after June or July
2012. Magistrate's Decision at 3. Also, the parties lived separate and apart after the
couple's last reconciliation attempt failed on June 6, 2012, and appellee agreed to
purchase his own home on July 15, 2012, after living in hotels for a number of months.
Id. Finally, the magistrate found the parties had ceased to function as a family unit prior
to August 20, 2012, and that appellee had no intention of dismissing the divorce after
August 2012. Id.
{¶19}. The magistrate also determined: "[t]his matter could have been prepared
by counsel for three different trial dates and three different attorneys. The de facto
marriage termination date assured counsel of a fixed date for determination of marital
property and valuation thereof. It would be inequitable to allow WIFE to force
HUSBAND to guess which date the court would select and provide property evaluations
for each possible date." See Magistrate's Decision at 3.
{¶20}. Accordingly, upon review, we conclude that the trial court fully considered
the term of marriage issue, and we find no abuse of discretion in the trial court's
selection of August 20, 2012, as the de facto termination date of the marriage.
{¶21}. Appellant's First Assignment of Error is therefore overruled. Stark County, Case No. 2013 CA 00236 7
II.
{¶22}. In her Second Assignment of Error, appellant argues the trial court abused
its discretion in dividing marital property by failing to account for certain payments made
during the marriage by appellee to his ex-wife, pursuant to his prior divorce, and to his
adult children. We disagree.
{¶23}. Historically, “[t]he concept of marital property is derived from the premise
that marriage is a voluntary partnership of co-equal partners with a division of duties
and labor that entitles each partner to a one-half interest in the assets accumulated from
the fruits of the partnership activity while the marriage is functioning.” Tomlin v. Tomlin
(March 16, 1987), Montgomery App. No. 10094, citing Wolfe v. Wolfe (1976), 46 Ohio
St.2d 399, 350 N.E.2d 413. An appellate court generally reviews the overall
appropriateness of the trial court's property division in divorce proceedings under an
abuse of discretion standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d
1293. Thus, a trial court should be given wide latitude in dividing property between the
parties. See Koegel v. Koegel (1982), 69 Ohio St.2d 355, 432 N.E.2d 206.
{¶24}. Furthermore, as an appellate court, we are not the trier of fact. Our role is
to determine whether there is relevant, competent, and credible evidence upon which
the factfinder could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d
768, 936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing Cross Truck v. Jeffries (Feb. 10,
1982), Stark App. No. CA–5758, 1982 WL 2911. The trier of fact is in a far better
position to observe the witnesses' demeanor and weigh their credibility. See, e.g.,
Taralla v. Taralla, Tuscarawas App. No. 2005 AP 02 0018, 2005–Ohio–6767, ¶ 31,
citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. Stark County, Case No. 2013 CA 00236 8
{¶25}. R.C. 3105.171(E)(4) directs that “[i]f a spouse has engaged in financial
misconduct, including, but not limited to, the dissipation, destruction, concealment,
nondisclosure, or fraudulent disposition of assets, the court may compensate the
offended spouse with a distributive award or with a greater award of marital property.”
Payments to Appellee's Ex-wife
{¶26}. The record in the case sub judice indicates that as a result of appellee's
prior divorce, appellee had issued a zero-interest note to his ex-wife in the amount of
$350,000.00 as a settlement for appellee's retention of certain company stock. Appellee
essentially had the option of paying back his ex-wife over the course of several years,
interest free. See Tr. I at 58-59. However, appellant and appellee discussed this matter
prior to their marriage, and appellant insisted that appellee deal with the remainder of
this debt. Appellee liquidated $205,000.00 of his separate property, namely certificates
of deposit, and applied the money to the note obligation. He then used $50,500.00 of
marital assets early in the marriage to satisfy the remainder. See Tr. I at 59. Appellant
presently argues that the latter sum should have been accounted for in the distribution
of property by crediting her with one-half of the amount paid during the marriage.
{¶27}. Appellant directs us to our decision in Sowers v. Sowers, 5th Dist. Licking
No. 00CA3, 2000 WL 968807, in which we affirmed a trial court's determination that had
found that the wife was entitled to a credit of $12,500 for payment of husband's
premarital debt of $25,000, where marital assets were used to pay off this preexisting
debt. We found the trial court had not abused its discretion in ordering this distribution of
property. Appellant also cites our decision in Tilmant v. Tilmant, 5th Dist. Knox No.
2004CA000024, 2005-Ohio-5939. In Tilmant, the marital residence had two mortgages, Stark County, Case No. 2013 CA 00236 9
the second being an equity line of credit in the amount of $60,113.53. The trial court
found that the husband had used $19,208.83 of the second mortgage loan to pay off his
separate premarital debts. The trial court determined that one-half of that amount, or
$9,604.41, should be considered as husband's separate debt, and therefore set off that
amount from husband's separate premarital interest in the marital residence. Id. at ¶ 15.
We affirmed, holding the trial court had properly exercised its discretion. Id. at ¶ 33.
{¶28}. We note in both Sowers and Tilmant, the trial court had allowed the credits
or set-offs against the party responsible for the premarital debt, and we affirmed in both
cases under an abuse-of-discretion standard. However, the procedural situation here is
different, in that the trial court sub judice declined to grant any credit in appellant's favor.
Appellant urges that we mandate such a credit, yet she has provided no case law in
which an appellate court has concluded a trial court abused its decision in failing to
effectively re-characterize such a premarital debt. Upon review, we are not inclined to
substitute our judgment on this point for that of the trial court in exercising its discretion
to craft an equitable division of property under the circumstances of this case.
Payments to Appellee's Adult Children
{¶29}. Appellant also argues that payments during the marriage to trusts for his
adult children born of his previous marriage (approximately $105,000.00), as well as
payments to an adult daughter who has cerebral palsy (approximately $104,000.00),
should also have been cause for appellant to receive a credit in the distribution of
property.
{¶30}. However, the trial court carefully considered this issue and determined
that the financial transfers to his adult children were part of a plan in place prior to the Stark County, Case No. 2013 CA 00236 10
marriage of appellant and appellee, and they were not done in an attempt to evade the
proper distribution of property in the present divorce. See Magistrate's Decision at 4.
Furthermore, as appellee suggests in his response brief, it would further complicate the
task of property division to encourage litigants in divorce cases to argue, absent cases
of financial misconduct, that solo expenditures during the marriage, such as gifts to
family members, vacations or items only enjoyed by one spouse, or other expenses of
which one spouse disapproves, should necessarily result in a greater share of the
marital estate to one side.
{¶31}. Upon review of the trial record, and viewing the award in its entirety, we do
not find the trial court abused its discretion in assessing the testimony and in dividing
the parties' property, as urged by appellant.
{¶32}. Appellant's Second Assignment of Error is therefore overruled.
III.
{¶33}. In her Third Assignment of Error, appellant contends the trial court abused
its discretion in deciding the amount and duration of spousal support awarded to her.
We disagree.
{¶34}. A trial court's decision concerning spousal support may only be altered if it
constitutes an abuse of discretion. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67,
554 N.E.2d 83. An abuse of discretion connotes more than an error of law or judgment;
it implies that the court's attitude is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶35}. R.C. 3105.18(C)(1)(a) through (n) provides the factors that a trial court is
to review in determining a spousal support obligation: Stark County, Case No. 2013 CA 00236 11
{¶36}. “(C)(1) In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms of payment, and duration
of spousal support, which is payable either in gross or in installments, the court shall
consider all of the following factors:
{¶37}. “(a) The income of the parties, from all sources, including, but not limited
to, income derived from property divided, disbursed, or distributed under section
3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The
ages and the physical, mental, and emotional conditions of the parties; (d) The
retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to
which it would be inappropriate for a party, because that party will be custodian of a
minor child of the marriage, to seek employment outside the home; (g) The standard of
living of the parties established during the marriage; (h) The relative extent of education
of the parties; (i) The relative assets and liabilities of the parties, including but not limited
to any court-ordered payments by the parties; (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.” Stark County, Case No. 2013 CA 00236 12
{¶38}. While R.C. 3105.18(C)(1), supra, does set forth fourteen factors the trial
court must consider, if the court does not specifically address each factor in its order, a
reviewing court will presume each factor was considered, absent evidence to the
contrary. Carroll v. Carroll, Delaware App.No. 2004-CAF-05035, 2004-Ohio-6710, ¶ 28,
citing Watkins v. Watkins, Muskingum App. No. CT 2001-0066, 2002-Ohio-4237
(additional citations omitted).
{¶39}. In the case sub judice, the magistrate ordered spousal support to
appellant in the amount of $10,670.00 per month for a term of eighteen months. After
adjusting for prior support received by appellant during the pending case, the magistrate
ordered a sum of $137,730.84 payable in twelve monthly installments of $11,477.57 per
month, beginning September 1, 2013, finding "[t]he terms of payment are equitable in
view of the distortion of this matter by the undue delay in the proceedings." Magistrate's
Decision at 9. The trial court approved and adopted this calculation.
{¶40}. The essential facts going to the issue of spousal support listed in the
decision are not in significant dispute. As of the time of the divorce, appellant was 47
years old; appellee was 58. Both were in good health, and both had been through a
prior marriage. The children born of said prior marriages had all reached adulthood.
Appellant has an associate's degree from Kent State University and has taken real
estate classes. Her prior job at GE averaged $20,993.00 per year for the years 2006
through 2007; she left that job after the birth of the parties' daughter and has not
become re-employed. Appellee is the owner of a plating company. His personal income
averaged $367,000.00 per year over a three-year period. The trial court, via its adoption Stark County, Case No. 2013 CA 00236 13
of the spousal support portion of the magistrate's decision, found the parties' standard
of living during the marriage to be comfortable.
{¶41}. Although the present income disparity is readily apparent in this instance,
the trial court concluded that appellant "has resources, ability and potential to be self-
supporting," but that appellee had fewer income-producing years left. Magistrate's
Decision at 9. The court noted that appellant owns a mortgage-free premarital residence
in Lake Cable (being used as a rental property) and owns a 2009 Buick with no debt on
the vehicle. In addition, the court found that appellant's claimed living expenses were
"grossly inflated." Id. Finally, the court duly found that the marriage of sixty-three
months, with separation after forty-three months, was not long-term. Id.
{¶42}. It has been aptly recognized that "[w]hile each case is unique, and hard
and fast rules are not applicable, courts generally award spousal support for lengthy
periods after marriages of long duration." Barrientos v. Barrientos, 3rd Dist. Hancock
No. 5–12–13, 2013-Ohio-424, ¶ 36 (emphasis added). Upon review of the record, we
are unpersuaded the trial court abused its discretion in adopting the magistrate's award
of spousal support to appellant of $11,477.57 per month to be paid over twelve months
under the facts and circumstances of this case.
{¶43}. Appellant's Third Assignment of Error is therefore overruled.
IV.
{¶44}. In her Fourth Assignment of Error, appellant argues that the trial court
abused its discretion in setting a date for appellant to vacate the marital residence. We
disagree. Stark County, Case No. 2013 CA 00236 14
{¶45}. In dividing property in a divorce, a court attempts to disentangle the
parties' economic partnership so as to create finality to the marriage. See Smith v.
Smith, Franklin App. No. 95APF06–719, 1995 WL 771441, citing Hoyt v. Hoyt (1990),
53 Ohio St.3d 177, 559 N.E.2d 1292. Furthermore, we have frequently recognized that
an appellant, in order to secure reversal of a judgment, must generally show that a
recited error was prejudicial to her. See Tate v. Tate, Richland App.No. 02–CA–86,
2004–Ohio–22, ¶ 15, citing Ames v. All American Truck & Trailer Service (Feb. 8, 1991),
Lucas App. No. L–89–295.
{¶46}. In the final decree of December 2, 2013, the trial court, rather than
compelling appellant to move immediately from the marital residence, gave appellant an
opportunity until February 15, 2014 to find another place to live. The record establishes
that appellant owns another home in Lake Cable which is her premarital separate
property. We find the order in question afforded her the additional right of remaining in
the marital home for a period of time after the final decree. Appellant does not articulate
why the setting of the post-decree date to vacate the marital residence would constitute
prejudicial error and does not suggest what relief would be sought upon remand from
this Court.
{¶47}. Appellant's Fourth Assignment of Error is therefore overruled.
V.
{¶48}. In her Fifth Assignment of Error, appellant argues that the trial court
abused its discretion in determining the value of certain "mixed assets." We disagree.
{¶49}. We reiterate that as an appellate court, we generally review the overall
appropriateness of the trial court's property division in divorce proceedings under an Stark County, Case No. 2013 CA 00236 15
abuse of discretion standard. Cherry, supra. Furthermore, we have long expressed our
reluctance to engage in piecemeal review of individual aspects of a property division
taken out of the context of the entire award. See Harper v. Harper (Oct. 11, 1996),
Fairfield App.No. 95 CA 56, citing Briganti v. Briganti (1984), 9 Ohio St.3d 220, 459
N.E.2d 896.
{¶50}. Appellant focuses on three assets, all of which were found to have marital
property values but which were awarded to appellee in the property division: (1) A 1998
Piper Archer airplane, valued at $15,319.00 in the decree; (2) an aircraft hangar, "Unit
72," valued at $8,946.00 in the decree; and (3) a T-51 Mustang airplane (jointly built by
appellee and his father), valued at $8,485.00 in the decree.
{¶51}. During the trial, appellee called Richard Craig, CPA, to the stand to
analyze and separate the marital property and separate property component for these
assets, for which some marital funds had been expended in the form of loan
repayments or other transfers. See Tr. at 90-102. Appellant had the opportunity to
present evidence to challenge Mr. Craig's conclusions or present her own expert, but
she instead utilized a reasonable strategy of extensive cross-examination of his
calculations. See Tr. at 102-150. Upon review, although appellant at trial zealously
argued for different accounting methodologies regarding the two aircraft and the hangar,
and continues to do so in the present appeal, we find the trial court's acceptance of the
valuations presented by the accounting expert Mr. Craig was not arbitrary,
unreasonable or unconscionable. Stark County, Case No. 2013 CA 00236 16
{¶52}. Appellant's Fifth Assignment of Error is therefore overruled.
{¶53}. For the foregoing reasons, the judgment of the Court of Common Pleas,
Domestic Relations Division, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/d 1106 Stark County, Case No. 2013 CA 00236 17