Chattree v. Chattree

2014 Ohio 489

• Court: Ohio Court of Appeals
• Decided: February 13, 2014
• Docket: 99337
• Status: Published

Opinion

[Cite as Chattree v. Chattree, 2014-Ohio-489.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99337

MANORAMA CHATTREE PLAINTIFF-APPELLEE and CROSS-APPELLANT

vs.

ARUN K. CHATTREE DEFENDANT-APPELLANT and CROSS-APPELLEE

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-321775

BEFORE: Celebrezze, P.J., Jones, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: February 13, 2014 ATTORNEY FOR APPELLANT/CROSS-APPELLEE

Carl A. Murway Taft Stettinius & Hollister, L.L.P. 200 Public Square, Suite 3500 Cleveland, Ohio 44114

ATTORNEY FOR APPELLEE/CROSS-APPELLANT

Jonathan A. Rich Victoria A. Glowacki Zashin & Rich Co., L.P.A. 55 Public Square, 4th Floor Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

For Canada Life

Suzanne M. Jambe Baker & Hostetler, L.L.P. 3200 PNC Center 1900 East Ninth Street Cleveland, Ohio 44114

For Ritu R. Chattree

Ritu R. Chattree, pro se 61 Jane Street Apartment 14-B New York, New York 10014

For Libman Ryder & Co., Inc., et al.

Walter F. Ehrnfelt Waldheger-Coyne 1991 Crocker Road, Suite 550 Westlake, Ohio 44145 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Defendant-appellant, Arun Chattree (“Arun”), appeals from a judgment entry

of divorce that awarded temporary and permanent spousal support and attorney fees and

divided marital assets. Plaintiff-appellee, Monorama Chattree (“Mona”), cross-appeals

from the judgment entry of divorce and challenges the valuation of Arun’s business, the

division of marital assets, and the court’s order allowing Arun to maintain possession of

his passport. For the following reasons, we affirm in part, reverse in part, and remand to

the trial court for further proceedings consistent with this opinion.

Factual and Procedural History

{¶2} Arun, now 79 years old, and Mona, now 78 years old, were married in India

on November 14, 1961. In 1963, their only child, a daughter, Ritu Chattree, was born.

Shortly after Ritu’s birth, Arun went to the United States to further his education.

Approximately four years later, Mona and Ritu joined Arun in the United States. Mona

maintained employment as a bacteriologist until she retired in 1995. Arun worked at

various companies until 1995 when he started his own business called Community

Behavioral Health Center, Inc. (“CBHC”). CBHC is licensed by the state of Ohio to

provide mental health services to patients through various providers and agencies.

{¶3} After 48 years of marriage, Mona and Arun became estranged. On June 19,

2008, Mona filed her complaint for divorce, naming seven defendants, seeking a divorce

from Arun and restraining orders against Arun and the other defendants. On December

9, 2008, Mona filed an amended complaint for divorce and named only four defendants, Arun and three business entities in which he had an interest. After numerous pretrial

hearings and an interloculatory appeal, the matter proceeded to trial, beginning March 8,

2010. Trial occurred on 27 separate days, over a span of seven months, before

concluding on October 4, 2010.

{¶4} At the conclusion of trial, written closing arguments were filed by Mona on

November 4, 2010, and by Arun on December 16, 2010. On April 3, 2012, the

magistrate issued a decision, making findings of fact and conclusions of law. On

November 30, 2012, the trial court ruled on the parties’ objections, adopting in part and

modifying in part the magistrate’s decision.

{¶5} Arun now brings this timely appeal, raising eight assignments of error for

review. In her cross-appeal, Mona raises six cross-assignments of error for review.1

Law and Analysis

Arun’s Appeal

I. Standard of Review

{¶6} For the purpose of judicial clarity, we consider Arun’s assignments of error

out of order. We review a trial court’s determination in domestic relations cases under

an abuse of discretion standard. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d

1028 (1989).

Since it is axiomatic that a trial court must have discretion to do what is equitable upon the facts and circumstances of each case, * * * it

Appellant’s assignments of error and appellee’s cross-assignments of error are included in the 1

appendix to this opinion. necessarily follows that a trial court’s decision in domestic relations matters should not be disturbed on appeal unless the decision involves more than an error of judgment.

Id., citing Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981). This

same standard applies to orders relating to spousal support and the division of marital

property. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140

(1983), and Martin v. Martin, 18 Ohio St.3d 292, 294, 480 N.E.2d 1112 (1985). An

abuse of discretion implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore at 219.

II. Division of Marital Property

{¶7} In a divorce proceeding, marital property includes the following:

(i) All real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;

(ii) All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;

(iii) Except as otherwise provided in this section, all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage * * *.

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

{¶8} R.C. 3105.171(C)(1) mandates an equal division of marital property, or, “if

an equal division is inequitable, the court must divide the marital property equitably.”

Strauss v. Strauss, 8th Dist. Cuyahoga No. 95377, 2011-Ohio-3831, ¶ 37, citing Neville v. Neville, 99 Ohio St.3d 275, 277, 2003-Ohio-3624, 791 N.E.2d 434. In order to

determine what is equitable, the trial court must consider the factors outlined in R.C.

3105.171(F). Id. Such factors include, among others, the duration of the marriage, the

assets and liabilities of the spouses, tax consequences of the property division, and any

retirement benefits of the spouses. R.C. 3105.171(F)(1)-(10). Moreover, the trial court

must take into account the parties’ marital debt when dividing marital property. Kehoe v.

Kehoe, 2012-Ohio-3357, 974 N.E.2d 1229, ¶ 14 (8th Dist.).

{¶9} Marital property, however, does not include separate property. R.C.

3105.171(A)(3)(b). “Separate property” is any real and personal property and any

interest in real or personal property that was acquired by one spouse prior to the date of

the marriage. R.C. 3105.171(A)(6)(a)(ii). The commingling of separate property with

other property does not destroy the identity of the separate property “except when the

separate property is not traceable.” R.C. 3105.171(A)(6)(b). The party seeking to have

certain property classified as “separate property” has the burden of proof in tracing the

separate property. Strauss at ¶ 49, citing Peck v. Peck, 96 Ohio App.3d 731, 734, 645

N.E.2d 1300 (12th Dist.1994).

{¶10} The marital assets in this case consist of both personal and real property.

However, within his appeal, Arun limits his arguments to the trial court’s division of the

following: (1) his interest in a cooperative apartment in New York, New York; (2) the

common pleas judgment award in the amount of $254,399.09; (3) the parties’ retirement

benefits; and (4) his interest in CBHC. A. The Cooperative Apartment

{¶11} During the pendency of the parties’ marriage, Arun gifted his daughter Ritu

a sum in excess of $550,000 for the purchase and renovation of a cooperative apartment

located at 61 Jane Street, New York, New York. Ritu subsequently asked for additional

money to cover the costs of renovations needed for the apartment that exceeded her

original budget. Arun agreed to loan Ritu the money provided that she first execute a

promissory cognovit note for the full amount of the loan, which was $187,000, plus

interest. In 2009, Ritu and her father had a “falling out,” and Arun sued his daughter in

federal court regarding the purchase and renovation of the cooperative apartment and in

Ohio state court over his unsatisfied demand that she pay the cognovit note in full.

{¶12} Arun prevailed, to some extent, in both lawsuits. On February 9, 2010, in

Chattree v. Chattree, N.D. Ohio No. 1:08 CV 2039, 2010 U.S. Dist. LEXIS 45885 (May

11, 2010), the U.S. District Court issued a decision in favor of Arun on his causes of

action for breach of fiduciary duty, fraudulent misrepresentation, concealment, and breach

of contract. Zero dollars were awarded to Arun, however, Ritu was ordered to effectuate

a transfer of title so that it named her and Arun as “tenants-in-common of the premises

know as Cooperative Apartment 14B on 61 Jane Street, New York, New York.”

{¶13} On March 31, 2010, in Chattree v. Chattree, Cuyahoga C.P. No.

CV-09-696460 (Mar. 31, 2010), the common pleas court issued a judgment against Ritu

in favor of Arun in the amount of $254,399.09 on the cognovit note that she signed for $187,000. This court affirmed the judgment of the trial court in Chattree v. Chattree, 8th

Dist. Cuyahoga, No. 95051, 2011-Ohio-1995.

{¶14} In dividing the parties’ marital property, the magistrate held that Arun and

Mona had no separate property. With respect to the cooperative apartment, the

magistrate determined that Ritu was entitled to “one-half of any equity Arun receives

from the Jane Street property” because its purchase and renovation derived from the

parties’ joint bank accounts during the pendency of their marriage. Further, the court

found that the common pleas court’s award of $254,399.09 for payment of the cognovit

note was marital property. However, in dividing the property, the court awarded Mona

the full $254,399.09, but reduced Arun’s outstanding spousal support arrearage by

$127,199.50, representing one-half of the cognovit judgment.

1. The Federal Court Judgment

{¶15} In his second assignment of error, Arun argues that the trial court erred in its

division of property by not finding that his interest in the cooperative apartment, as

ordered by the federal court, constituted his separate property. As stated, property

acquired during a marriage is presumed to be marital property unless it can be shown to

be separate. Huelskamp v. Huelskamp, 185 Ohio App.3d 611, 2009-Ohio-6864, 925

N.E.2d 167, ¶ 13 (3d Dist.).

{¶16} Arun does not dispute that the cooperative apartment was purchased during

the parties’ marriage with marital funds. Instead, he contends that this court should find

that the interest awarded to him by the federal court is his “separate property” because he suffered damages in an individual capacity. Arun’s argument relies on R.C.

3105.171(A)(6)(a)(vi), which defines separate property as all real property and personal

property that is found by the court to be “compensation to a spouse for the spouse’s

personal injury * * *.” Generally, R.C. 3105.171(A)(6)(a)(vi) applies to situations

where, unlike here, a party is awarded monetary damages following a personal-injury

lawsuit. Nevertheless, Arun contends that the damages he suffered as a result of Ritu’s

conduct “are akin to personal injuries” contemplated under R.C. 3105.171(A)(6)(vi).

Arun’s contention is without merit.

{¶17} In our view, the language used in R.C. 3105.171(A)(6)(vi) does not

encompass an individual who suffers a legal injury in an individual capacity. Moreover,

even if it did, Arun did not suffer an injury in an individual capacity. R.C.

3105.171(A)(6)(a)(ii) defines marital property as any interest in real or personal property

that was acquired by either or both spouses during the marriage. Here, Arun’s interest in

the cooperative apartment was obtained with funds transferred from the parties’ marital

accounts during their marriage. Consequently, Mona had an interest in the funds used to

purchase and renovate the cooperative apartment.

{¶18} Next, Arun argues that this court should find that Mona’s actions during the

entirety of the federal lawsuit constituted “financial misconduct.” R.C. 3105.171(E)(3)

provides that if a spouse has engaged in financial misconduct, including but not limited to

the dissipation, destruction, concealment, or fraudulent disposition of assets, the court

may compensate the offended spouse with a distributive award or with a greater award of marital property. “Financial misconduct implies some type of wrongdoing which results

in the offending spouse either profiting from the misconduct or intentionally defeating the

other spouse’s distribution of marital assets.” Carpenter v. Carpenter, 7th Dist. Noble

No. 06-NO-331, 2007-Ohio-1238, ¶ 15, citing Wideman v. Wideman, 6th Dist. Wood No.

WD-02-030, 2003-Ohio-1858, ¶ 34.

{¶19} Here, Arun contends that because Mona actively participated in the federal

lawsuit and testified on behalf of Ritu, her conduct was the equivalent of dissipating

marital assets. We find no merit to Arun’s argument. In our view, the mere fact that

Mona disagreed with Arun suing their daughter in federal court does not equate to a

finding that Mona committed financial misconduct. Mona committed no wrongdoing in

testifying truthfully at trial.

{¶20} Finally, Arun contends that the trial court failed to consider the $843,750

mortgage encumbering the cooperative apartment when it awarded Mona an interest in

the apartment as a marital asset. However, the trial court’s judgment order specifically

requires Ritu to make all payments on the loan and hold Arun harmless on any debt

associated with the property. Thus, it is clear that the trial court did not ignore the

mortgage encumbering the apartment and any future liability associated with said

mortgage.

{¶21} Based on the foregoing, we find that the trial court did not err in concluding

that Arun’s interest in the cooperative apartment was marital.

{¶22} Arun’s second assignment of error is overruled. 2. The Common Pleas Court Judgment

{¶23} In his sixth assignment of error, Arun argues that the trial court erred by

concluding that the cognovit judgment against Ritu was marital property. However, as

discussed above, the funds loaned to Ritu derived from marital accounts. Accordingly,

the trial court properly determined that the cognovit judgment in the amount of

$254,399.09 was a marital asset.

{¶24} Arun further argues, without support in the record, that because the trial

court’s arrearage calculation was inequitable and unlawful, the provision in the trial

court’s order requiring Arun to transfer his interest in the cognovit judgment to Mona to

reduce the arrearage amount was also contrary to law. However, Arun provides no basis

for this contention. Although addressed in greater detail below, because we find that the

trial court’s spousal support order was appropriate, we find no merit to Arun’s position

that the value of the cognovit judgment could not be utilized to reduce the outstanding

spousal support arrearage.

{¶25} Arun’s sixth assignment of error is overruled.

B. Retirement Funds

{¶26} In his fifth assignment of error, Arun argues that the trial court erred by not

dividing the parties’ retirement benefits equally and by guaranteeing a “minimum”

amount of benefits to Mona. Specifically, Arun alleges that the trial court erred in

dividing his CBHC defined benefit pension equally while allowing Mona to retain the entirety of her annual OPERS benefits of $24,875.76, which Arun argues far exceed his

annual OPERS benefits of $8,237.71.

{¶27} As stated, the division of marital property includes retirement benefits that

were acquired during the marriage. R.C. 3105.171(A)(3)(a)(ii). However, R.C.

3105.171(C) clearly provides that where an equal division would be inequitable, a trial

court may not divide the marital property equally but instead must divide it in the manner

that the court determines to be equitable. In order to determine what is equitable, a trial

court must consider the factors set forth in R.C. 3105.171(F).

{¶28} In the instant case, the trial court stated that although the division of

property in this matter was unequal, “it was equitable due to the financial misconduct

committed by [Arun] during the course of this litigation.” Pursuant to R.C.

3105.171(E)(4), “if a party has engaged in financial misconduct, including the

dissipation, concealment or nondisclosure of assets, the court may compensate the other

party with a greater share of marital assets.” Thus, an “equal” distribution of the parties’

retirement benefits was not required in this matter.

{¶29} Nevertheless, we find, on due consideration of all retirement benefits at

issue in this matter, that the trial court equally divided the parties’ retirement benefits.

While Arun argues that Mona’s annual OPERS benefits far exceed his own, he fails to

account for the large disparity between the parties’ social security benefits. See R.C.

3105.171(F)(9) (requiring consideration of Social Security benefits when “relevant for purposes of dividing a public pension”). Therefore, we cannot say that the trial court

abused its discretion in allowing Mona to retain her annual OPERS benefits in full.

{¶30} Furthermore, Arun’s challenges to the division of his pension plan are

without merit. In its opinion, the trial court awarded Mona a one-half marital interest in

Arun’s CBHC defined pension plan to be set aside in her name through the use of a

Qualified Domestic Relations Order. The court found that the value of the pension was

$1,630,904 as of December 31, 2009, and that Mona was entitled to no less than

$815,452. Here, Arun argues that it was an abuse of discretion to “guarantee” Mona no

less than a fixed amount where there was significant evidence presented at trial that the

pension plan was underfunded.

{¶31} Arun cites plan actuary Catherine Wolford’s testimony on March 9, 2010, to

support his argument that the pension plan’s liabilities were greater than its assets.

However, while the pension was underfunded in late 2008, CBHC vice-president of

finance and acting executive director, Luan Hutchinson’s subsequent testimony

demonstrated that the pension’s underfunding had been remedied by September 2010.

Moreover, given the amount of control Arun has over the CBHC pension plan, it was not

unreasonable or arbitrary for the trial court to award Mona a minimum amount under the

plan. Thus, we conclude that the trial court’s division of the parties’ retirement benefits

did not constitute an abuse of discretion.

{¶32} Arun’s fifth assignment of error is overruled.

C. CBHC {¶33} In his first assignment of error, Arun raises several arguments relating to the

trial court’s determination that his interest in CBHC had a value of $1,500,000.

Similarly, in her first cross-assignment of error, Mona argues that the trial court abused its

discretion in determining that the value of CBHC was $1,500,000 when evidence

presented at trial established that the fair market value of the business was $1,900,000.

Because these arguments are closely related, we will address them together.

1. Arun’s Motion in Limine

{¶34} Initially, Arun claims that the trial court improperly denied his March 8,

2010 motion in limine. In his motion, Arun urged the magistrate to prohibit Mona from

offering any evidence or testimony regarding the valuation of CBHC, including the

valuation report submitted by Mona’s expert witness, Robert Ranallo. Arun argued that

preclusion was appropriate based on Ranallo’s failure to appear at a scheduled deposition.

{¶35} At the outset, we note that “[t]he denial of a motion in limine is within the

sound discretion of the trial court.” State v. Werfl, 11th Dist. Lake Nos. 2002-L-101 and

2002-L-102, 2003-Ohio-6958, ¶ 64. Accordingly, we shall not disturb the trial court’s

ruling absent an abuse of discretion. Id.

{¶36} Here, the record reflects that Ranallo did not appear at the March 4, 2010

deposition because he had not yet completed his expert report. As discussed further

below, Ranallo’s inability to complete his expert report was attributed to Arun’s failure to

timely provide Mona with financial records for the year 2008. For this reason, the

magistrate declined to exclude Ranallo’s testimony and valuation report. Instead, the magistrate found that Arun had sufficient time following the submission of Ranallo’s

report, but before Ranallo was scheduled to testify, to reschedule a deposition for Ranallo

that would work for all parties involved. However, Arun made no such attempt

following the court’s order. Under these limited circumstances, we find that the trial

court acted within its discretion in denying Arun’s motion in limine.

2. Timeliness of the Expert Reports

{¶37} Next, Arun maintains that the trial court abused its discretion in admitting

Ranallo’s expert report and allowing Ranallo to testify at trial where his report was not

submitted to defense counsel until after trial had commenced. Arun further contends that

it was “inequitable, contrary to law, and simply unfair” to exclude the expert report and

rebuttal testimony of Arun’s expert witness, Bernard Agin. We disagree.

{¶38} A trial court’s ruling as to the admission or exclusion of testimony is within

its broad discretion and will not be disturbed absent an abuse of discretion. Miller v.

Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735 (1998).

{¶39} After a careful review of the extensive procedural history of this case, we

agree with the magistrate’s detailed discussion attributing the delay in Ranallo’s

submission of his expert report to Arun’s conduct. The record reflects that although

Arun was ordered on May 11, 2009, to advance Mona $5,000 so that she could retain an

expert, those funds were not delivered to Mona until November 10, 2009. Further, once

Mona retained Ranallo, Arun continuously delayed Ranallo’s ability to complete his

valuation report by failing to provide necessary documentation, including vital tax returns, and by refusing to cooperate with Ranallo’s repeated requests to conduct a

management interview and site visit at CBHC. Thus, Ranallo’s ability to produce and

submit a timely expert report was thwarted by Arun’s conduct throughout the discovery

process and his repeated failure to comply with orders of the lower court. Thus, we are

unable to conclude that the trial court abused its discretion in accepting Ranallo’s expert

report.

{¶40} Moreover, we are unable to conclude that the trial court abused its discretion

in excluding the valuation report of Arun’s expert, Bernard Agin. Throughout these

proceedings, the parties were well aware that the value of CBHC was a highly contested

issue in this divorce. Nevertheless, Arun waited until late September 2010, or six and

one-half months into trial, before disclosing Agin as a witness and submitting his expert

report. Based on the untimely nature of Arun’s disclosure of Agin’s report, the

magistrate excluded the portion of Agin’s report relating to his valuation of CBHC, but

permitted Agin to provide rebuttal testimony in relation to the methodology employed by

Ranallo in valuing CBHC.

{¶41} We find that the trial court acted within its discretion in limiting the scope of

Agin’s rebuttal testimony. While the record demonstrates that many of the delays

associated with the production of Ranallo’s expert report are attributable to Arun’s

conduct, Arun’s untimely production of Agin’s expert report was not caused by Mona’s

conduct. Thus, the magistrate properly determined that Mona would have been prejudiced by the admission of such a late report. See Hissa v. Hissa, 8th Dist. Cuyahoga

Nos. 79994 and 79996, 2002-Ohio-6313, ¶ 15.

3. The Business Valuation

{¶42} Finally, Arun argues that the trial court erred in valuing his interest in

CBHC at $1,500,000. Arun contends that, given the business liabilities and limited

assets, the trial court should have determined that CBHC had no fair market value.

{¶43} 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). An abuse of

discretion implies that the court’s attitude is arbitrary, unreasonable, or unconscionable.

Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140 (1983).

{¶44} In challenging the trial court’s reliance on Ranallo’s opinion of CBHC’s

value, Arun argues that Ranallo’s expert report failed to comply with evidentiary

mandates of Evid.R. 702(C), and therefore should have been excluded.

{¶45} “A ruling concerning the admission of expert testimony is within the broad

discretion of the trial court and will not be disturbed absent an abuse of discretion.”

State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 57.

{¶46} Evid.R. 702 governs the admissibility of expert testimony. It provides: A witness may testify as an expert if all of the following apply:

(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

(C) The witness’ testimony is based on reliable, scientific, technical, or other specialized information. * * *

{¶47} Here, Arun does not challenge Ranallo’s qualifications. Instead, he argues

that Ranallo’s methodology was unreliable due to his unfamiliarity with CBHC and its

business structure.

{¶48} Whether an expert’s opinion is admissible depends on whether the

principles and methods employed by the witness to reach his opinion were reliable and

not on whether his conclusions are correct. Bike Athletic Co., 80 Ohio St.3d at 611,

1998-Ohio-178, 687 N.E.2d 735 (1998). See also Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

{¶49} In the case at hand, Ranallo opined, using the “capitalization of earnings

method,” that the value of Arun’s interest in CBHC was $1,919,000 as of December 31,

2008. In arriving at this value, Ranallo added back the annual cost of the CBHC defined

pension plan and the cash surrender value of the CBHC officer life insurance policies

valued at $601,738. In adding back the costs of the pension plan and life insurance

policies, Ranallo testified that they were non-operating or non-recurring assets that are “discretionary in nature.” As such, Ranallo made a “normalized adjustment” to add back

the costs of the assets in each of the years analyzed.

{¶50} Although Ranallo testified that his valuation opinion was based on a

reasonable degree of accounting certainty, he admitted in his expert report that

[d]ue to limited access to information and management, [his] analysis was not subject to the development or reporting standards set forth in the American Institute of Certified Public Accountants Statement of Standards for Valuation Services No. 1 (AICPA) nor the valuation standards as promulgated by the National Association of Certified Valuation Analysts (NACVA).

In particular, Ranallo stated that, although requested, he was not furnished the following

information that could have impacted his determination of value:

(1) access to management or the opportunity to interview management * * *; (2) detail of certain balance sheet and income statement accounts; (3) corporate governance documents, significant contractual relationships, and other relevant business information; (4) details of previous ownership transactions; (5) budgets and/or projections for the company; and (6) organizational chart depicting corporate structure.

{¶51} In developing his report, Ranallo relied on CBHC’s tax returns and financial

statements from December 31, 2005 through December 31, 2008. Arun alleges that,

because Ranallo’s opinion was based primarily on financial documents, Ranallo had a

lack of knowledge concerning CBHC’s day-to-day operations, and therefore an

insufficient foundation to construct an opinion as to its value. Specifically, Arun

contends that Ranallo was unfamiliar with relevant aspects of CBHC, including Medicare

and Medicaid regulations, the funding requirements for CBHC’s defined pension plan,

and the transferability of the company’s license. However, Ranallo’s testimony at trial demonstrates that his lack of knowledge concerning the intricacies of CBHC derived

primarily from Arun’s refusal to consent to a site visit or a management interview, as

evidenced by a letter sent to plaintiff’s counsel dated April 28, 2010.

{¶52} In our view, Arun should not be rewarded for such conduct. As the

magistrate noted, “[this] court cannot allow [Arun’s] refusal to grant a management

interview to prevent [Mona] from establishing a crucial part of her case, the value of the

business.” Accordingly, we find any error associated with the basis of Ranallo’s

opinion to be invited. Tyler v. Tyler, 8th Dist. Cuyahoga No. 93124, 2010-Ohio-1428, ¶

32 (“If a party elects to be less than forthcoming in the presentation of evidence, he has a

right to do so, and any error resulting therefrom must be ‘invited’”).

{¶53} Thus, within the confines of the information provided to him, we find that

Ranallo’s testimony and valuation report were reliable and based on a reasonable

application of his disciplines, practices, and knowledge of the facts of this case. The

record demonstrates that Ranallo considered relevant literature in his field and all

financial data available to him, including CBHC’s relevant tax returns and audited

financial statements. Accordingly, we find no abuse of discretion in the court’s reliance

on Ranallo’s opinion as to the value of CBHC.

{¶54} With respect to Mona’s cross-appeal, we note that on cross-examination,

Ranallo was asked to hypothetically consider the difference in CBHC’s value if he did not

make a normalized adjustment for the defined pension plan. Although reluctant to

answer hypothetical questions, Ranallo determined that, if he did not “normalize out” the pension plan, CBHC would have a hypothetical value of $231,188. Once Ranallo made

this hypothetical calculation, the following statements were made:

DEFENSE COUNSEL: Okay, that’s 231 versus 1.9 million, correct?

RANALLO: No. No. That’s — that’s 231 against a million five thirty.

DEFENSE COUNSEL: 231 against a million five thirty?

RANALLO: Because the million five thirty or the 231, we would add the normalizing adjustment for the —

DEFENSE COUNSEL: I didn’t want you to state to us —

RANALLO: I’m trying to be real clear.

DEFENSE COUNSEL: So, it’s 231 now versus 1.5, correct?

RANALLO: Correct.

{¶55} Based on this exchange, the magistrate determined that

Ranallo modified his opinion based on certain assumptions regarding the pension plan given to him by defendant’s counsel and reduced his opined value to 1.5 million dollars. The court finds that the assumptions he was asked to assume are applicable in this case as they reflect the financial realities of CBHC and that his reduced opined value of $1,500,00 is the appropriate value for the parties’ business entities.

{¶56} After a careful review of the record and the entirety of Ranallo’s

cross-examination, we find that the magistrate erred in concluding that Ranallo had

modified his opinion as to the value of the company. At no point during his

cross-examination did Ranallo express that the posed hypothetical questions “reflected

the financial realities of CBHC,” nor did he affirmatively state that he had reduced his

opinion of the value to $1,500,000. Moreover, this court finds that the magistrate’s interpretation of Ranallo’s statements does not accurately reflect the context of his

testimony. In our view, when Ranallo stated that the value changed from “231 versus a

million five thirty,” he was referring to the value of the company before the normalized

adjustment for the life insurance policy, worth $601,738, was made. In fact, the above

exchange reflects that Ranallo attempted to explain this to defense counsel when he

stated, “[b]ecause the million five thirty or the 231, we would add the normalizing

adjustment for the —.” However, Ranallo was cut off before he could clarify that the

“million five thirty or the 231” did not include the adjustment made for the life insurance

policy.2

{¶57} Based on the foregoing, we find that the trial court erred in concluding that

the appropriate value of CBHC was $1,500,000. Consequently, we reverse the trial

court’s valuation of Arun’s interest in CBHC and remand to the trial court to determine

whether Ranallo’s opined value of $1,919,000 is appropriate.

{¶58} Arun’s first assignment of error is overruled. However, Mona’s first

cross-assignment of error is sustained.

Ranallo’s expert report supports this court’s finding. In his report, Ranallo explains that when the 2

adjustments for the pension plan were made, “the value of CBHC on a marketable, controlling interest basis is $1,530,00, as set forth in Exhibit 4.” However, Ranallo then explains that when he made the adjustment for the CSV life insurance policy, he arrived at a “controlling, marketable interest value of * * * approximately $2,132,000.” Ranallo then applied a 10 percent discount for lack of marketability to the $2,132,000 figure, to arrive to his opined value of $1,919,000. III. Support Orders

A. Temporary Spousal Support

{¶59} On filing for divorce, Mona requested temporary spousal support. On

December 2, 2008, the trial court ordered Arun to pay $8,000 per month as support

pendente lite commencing June 19, 2008. Within 30 days of this order, Arun placed

himself on medical leave from CBHC and stopped drawing a salary. At the conclusion of

trial, the magistrate reduced the temporary support order to $7,000 per month retroactive

to January 15, 2009. The magistrate reasoned that the decision to reduce the support

order by $1,000 per month was equitable given the fact that Arun was no longer receiving

wages from CBHC.

{¶60} In his third assignment of error, Arun argues that the trial court erred by

failing to reduce the temporary spousal support order to zero during the pendency of the

divorce action based on Arun’s disability, age, and lack of earned income.

{¶61} R.C. 3105.18(B) authorizes the trial court to award reasonable temporary

spousal support to either party during the pendency of any divorce or legal separation

proceeding.

{¶62} In challenging the temporary spousal support order, Arun initially argues

that the order was improper based on the court’s failure to hold a hearing on the issue, as

required under Civ.R. 75(N).3 In the instant case, Arun filed a motion challenging the

Civ.R. 75(N)(1) authorizes the trial court to grant spousal support pendente lite to either party 3

without oral hearing upon the filing of a motion and supporting affidavit. The opposing party may then submit counter affidavits within 14 days of the filing of the motion. Civ.R. 75(N)(2). temporary spousal support order pursuant to Civ.R. 75(N)(2) on December 11, 2008.

Civ.R. 75(N)(2) states, in relevant part:

Upon request, in writing, after any temporary spousal support * * * is journalized, the court shall grant the party so requesting an oral hearing within twenty-eight days to modify the temporary order. A request for oral hearing shall not suspend or delay the commencement of spousal support or other support payments previously ordered or change the allocation of parental rights and responsibilities until the order is modified by journal entry after the oral hearing.

{¶63} After a careful review of the record, it is clear that a Civ.R. 75(N)(2) hearing

was not completed in this matter. Here, the magistrate held a hearing on May 19, 2009,

after several continuances, to address Arun’s motion to modify the temporary support

order. In fact, the magistrate stated at the onset of the hearing that “this hearing is solely

for the purpose of hearing the arguments about the order for support.” However, defense

counsel failed to address the merits of Arun’s Civ.R. 75(N)(2) motion. Instead, defense

counsel raised matters unrelated to the temporary support order, including issues

concerning Mona’s domicile and the jurisdiction of the court. In our view, such conduct

equates to invited error. The invited error doctrine states that “a party is not entitled to

take advantage of an error that he himself invited or induced.” State ex rel. Kline v.

Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517; State v. Smith, 148 Ohio

App.3d 274, 2002-Ohio-3114, 772 N.E.2d 1225 (8th Dist.).

{¶64} Moreover, even if this court were to find that the trial court acted improperly

by failing to complete the hearing within 28 days of Arun’s motion pursuant to Civ.R.

75(N)(2), this failure does not necessarily constitute a reversible error. It is incumbent upon Arun to demonstrate that he was prejudiced by the failure of the court to hold a

hearing. Thorp v. Thorp, 11th Dist. Trumbull No. 2010-T-0038, 2011-Ohio-1015, ¶ 39.

“When a party is able to fully litigate the issues regarding temporary support orders

during the final divorce trial, the trial may constitute the Civ.R. 75(N)(2) hearing on

temporary support orders.” Id., citing Doody v. Doody, 11th Dist. Lake No. 2006-L-200,

2007-Ohio-2567, ¶ 44.

{¶65} Here, Arun was not prevented from litigating the issue of temporary support

at trial and, in fact, the issue was raised during the testimony of both parties and

addressed in the magistrate’s decision, as evidenced by the court’s order to reduce the

temporary support order by $1,000 from the date Arun went on medical leave. Thus,

“[t]he divorce trial itself became a Civ.R. 75[(N)] hearing on the amount of reasonable

temporary support.” Doody at ¶ 44. Given these circumstances, the court’s failure to

hold a pretrial hearing on the temporary order did not constitute an abuse of discretion.

{¶66} With respect to the amount of support ordered, Arun claims that the court

erred in calculating the temporary support at $7,000 based on the significant reduction in

his income following his retirement.

{¶67} After a careful review of the relevant documentation evidencing the parties’

income during the relevant time periods, we find no merit to Arun’s reliance on his

retirement in early 2009. At trial, Mona presented Arun’s 2007 and 2008 tax returns,

which indicated that while Arun was serving as the president of CBHC he earned a total

estimated income of $796,653 in 2007 and $478,856 in 2008. The evidence further demonstrated that Arun continued to derive a substantial income, even after his medical

leave on January 15, 2009. While Arun was no longer receiving a salary, he was receiving

social security and OPERS benefits, income from his business, and funds from his

pension and annuities. This amounted to a total estimated income of $440,926 in 2009

and $193,114 in 2010. In contrast, Mona’s total estimated income was $22,557 in 2007,

$23,406 in 2008, and $24,875.76 in 2009. Based on these figures, the court’s temporary

sposual support order was reasonable and did not equate to an abuse of discretion.

{¶68} Arun’s third assignment of error is overruled.

B. Permanent Spousal Support

{¶69} In his fourth assignment of error, Arun argues that the trial court erred by

awarding unreasonable and inappropriate spousal support to Mona.

{¶70} In determining whether to grant spousal support and in determining the

amount and duration of the payments, the trial court must consider the factors listed in

R.C. 3105.18. Robinson v. Robinson, 8th Dist. Cuyahoga No. 97933, 2012-Ohio-5414.

The factors the trial court must consider include: each party’s income, earning capacity,

age, retirement benefits, education, assets and liabilities, and physical, mental, and

emotional condition; the duration of the marriage; their standard of living; inability to

seek employment outside the home; contributions during the marriage; tax consequences;

and lost income due to a party’s fulfillment of marital responsibilities. R.C.

3105.18(C)(1)(a)-(m). In addition, the trial court is free to consider any other factor that

the court finds to be “relevant and equitable.” R.C. 3105.18(C)(1)(n). {¶71} The trial court is not required to comment on each statutory factor; the

record need only show that the court considered the statutory factors when making its

award. Kaletta v. Kaletta, 8th Dist. Cuyahoga No. 98821, 2013-Ohio-1667, ¶ 22, citing

Kaechele v. Kaechele, 35 Ohio St.3d 93, 96, 518 N.E.2d 1197 (1988). If the record

reflects that the trial court considered the statutory factors, and if the judgment contains

details sufficient for a reviewing court to determine that the support award is fair,

equitable, and in accordance with the law, the reviewing court will uphold the award.

Daniels v. Daniels, 10th Dist. Franklin No. 07AP-709, 2008 Ohio App. LEXIS 772 (Mar.

4, 2008), *9, citing Schoren v. Schoren, 6th Dist. Huron No. H-04-019, 2005-Ohio-2102,

¶ 11.

{¶72} In this matter, the trial court sufficiently considered each of the factors set

forth in R.C. 3105.18. In its decision, the court found that “it is appropriate and

reasonable for [Arun] to pay spousal support to [Mona]” based on the following factors:

“[t]he age of the parties; the relative earning potential of the parties in the future; the

length of the marriage; [Arun]’s pretrial refusal to pay support to [Mona]; and other

factors listed in the Magistrate’s Decision.” Accordingly, the trial court ordered Arun to

pay “the sum of $7,000 per month, plus 2 [percent] processing charge, for an indefinite

term, commencing 11/26/2012.” The trial court further ordered Arun to pay an

additional $500 per month toward the existing arrearage.

{¶73} In challenging the trial court’s analysis, Arun argues that the trial court erred

in finding that his income is “measurably greater that Mona’s.” Arun contends that the trial court’s order does not consider potential retirement plan liabilities and other debts,

such as the mortgage on the Jane Street cooperative apartment. Further, Arun submits

that the trial court’s analysis ignores the fact that Mona was awarded a substantial interest

in CBHC and one-half of his pension plan as part of the parties’ property division. Thus,

Arun states “the term ‘double dip’ does not even begin to describe how unreasonable,

inappropriate and inequitable the [court]’s decision is with regard to the findings of

income and conclusions concerning payment of temporary and permanent spousal

support.”

{¶74} With respect to Arun’s personal liability for proper funding of the CBHC

pension plan, the record reflects that there was no underfunding of the plan at the time the

trial concluded. Without evidence to support any notion that the pension was

underfunded, we are unable to conclude that the trial court erred with respect to its

consideration of the parties’ retirement benefits, pursuant to R.C. 3105.18(C)(1)(d).

Moreover, despite Arun’s argument to the contrary, the trial court did consider his

potential liabilities associated with the mortgage on the cooperative apartment. In its

opinion, the trial court ordered Ritu to pay the mortgage and hold Arun harmless on any

debt associated with this property.

{¶75} Finally, we find no merit to Arun’s theory of “double dipping.” Generally, a

trial court may be found to have abused its discretion by allowing the payee spouse to

“double dip” when a marital pension is divided as part of the property distribution and is

subsequently included as income for purposes of establishing the support obligations of the payor spouse because the payee spouse receives a portion of that pension in two

different forms. Frederick v. Frederick, 11th Dist. Portage No. 98-P-0071, 2000 Ohio

App. LEXIS 1458 (Mar. 31, 2000). However, in the case at hand, the trial court’s support

order avoided the issue of double dipping by stating that Arun’s obligation to make

spousal support payments will terminate once one-half of the marital interest in the

CBHC pension plan is transferred to Mona pursuant to a Qualified Domestic Relations

Order. Although unusual, we find the framework of the trial court’s spousal support

order was necessary, under the narrow circumstances of this case, to compel compliance

with the divorce decree given Arun’s refusal to be forthcoming with his full financial

information and his history of failing to follow court orders.

{¶76} Based on the foregoing, we conclude that the decision of the trial court is

well supported in the record, and there is competent, credible evidence going to all of the

statutory elements for establishing a spousal support order. Therefore, we find no abuse

of discretion in connection with this award.

{¶77} Arun’s fourth assignment of error is overruled.

IV. Attorney Fees

{¶78} In his seventh assignment of error, Arun argues that the trial court erred by

requiring him to pay a portion of Mona’s litigation expenses and substantially all of her

attorney fees.

{¶79} An award of attorney fees in a domestic relations action is within the sound

discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Wildman v. Wildman, 5th Dist. Licking No. 12-CA-21, 2012-Ohio-5090.

R.C. 3105.73(A) governs the award of attorney fees and litigation expenses in domestic

relations cases and provides:

In an action for divorce * * * or an appeal of that action, a court may award all or part of the reasonable attorney’s fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.

{¶80} In the instant case, the court determined

that due to [Arun]’s conduct during this matter, his refusal to comply with various pretrial orders and discovery, and the fact that [Arun] had control over the vast majority of the parties’ assets and income, that it would be equitable for [Arun] to pay a portion of [Mona’s] attorney fees and litigation expenses.

Accordingly, the court ordered Arun to pay “as additional property division” $110,000 in

attorney fees and $20,000 in litigation costs.

{¶81} After a careful review of the record, we find ample evidence to support the

trial court’s finding that Arun’s conduct caused Mona to incur additional fees and

expenses. Under these circumstances, we find that the trial court did not abuse its

discretion, and the decision regarding attorney fees and costs is supported by competent,

credible evidence. See, e.g., Klayman v. Luck, 8th Dist. Cuyahoga Nos. 97074 and

97075, 2012-Ohio-3354; Bain v. Levinstein, 8th Dist. Cuyahoga No. 94313,

2010-Ohio-5596.

{¶82} Arun’s seventh assignment of error is overruled. V. Contempt

{¶83} In his eighth assignment of error, Arun argues that the trial court erred by

finding him in contempt in regard to the temporary support issues. Specifically, Arun

contends that the trial court’s failure to conduct a Civ.R. 75(N) hearing rendered the

temporary support order void and invalid. Thus, Arun submits it was unlawful to find

him in contempt and impose sanctions where the underlying order was void.

{¶84} In its opinion, the trial court found Arun to be in contempt “for failing to

pay the temporary support orders, to obey other pretrial court orders, and produce a

signed and notarized pretrial statement.” The court sentenced Arun to 30 days in jail or,

in the alternative, to perform not less than 200 hours of community service in lieu of

actual incarceration. The court stipulated that the sentence would be purged provided

Arun pays spousal support in the sum of $150,000.

{¶85} At the outset, we recognize that an appellate court will not overturn a trial

court’s finding of contempt absent an abuse of discretion. State ex rel. Ventrone v.

Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). “Contempt is a disregard of, or

disobedience to, an order or command of judicial authority.” First Bank of Marietta v.

Mascrete, Inc., 125 Ohio App.3d 257, 263, 708 N.E.2d 262 (4th Dist.1998). The

contempt process was created “to uphold and ensure the effective administration of

justice[,] * * * to secure the dignity of the court[,] and to affirm the supremacy of law.”

Cramer v. Petrie, 70 Ohio St.3d 131, 133, 637 N.E.2d 882 (1994). {¶86} “[T]he burden of proof for civil contempt is clear and convincing evidence.”

Delawder v. Dodson, 4th Dist. Lawrence No. 02CA27, 2003-Ohio-2092, ¶ 10. Before

the imposition of a sentence for civil contempt, the trial court must afford the contemnor

an opportunity to purge himself of the contempt. Id. “The contemnor is said to carry

the keys of his prison in his own pocket since he will be freed if he agrees to do as so

ordered.” Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980).

Typically, a failure to pay court-ordered spousal support is a civil contempt. Lemke v.

Lemke, 8th Dist. Cuyahoga No. 94557, 2011-Ohio-457, ¶ 44.

{¶87} Initially, we note that, as previously addressed, the absence of a Civ.R.

75(N) hearing in this matter did not render the temporary support order void. As

discussed, the trial court scheduled a Civ.R. 75(N) hearing, but Arun failed to argue the

merits of his motion during said hearing. Nevertheless, the issues that would have been

raised at the Civ.R. 75(N) hearing were ultimately addressed at trial. Thus, the failure to

hold a Civ.R. 75(N) hearing does not render the temporary spousal support order void,

and any raised error associated with the trial court’s failure to hold a Civ.R. 75(N) hearing

prior to trial was invited by Arun and his counsel.

{¶88} With respect to the merits of the trial court’s contempt order, we note that a

party establishes a prima facie case of contempt by showing the non-payment of a spousal

support order. See King v. King, 11th Dist. Geauga Nos. 2012-G-3068 and

2012-G-3079, 2013-Ohio-2038, ¶ 24. Once non-payment has been established, the

burden shifts to the alleged contemnor to establish any defense he may have for non-payment, including his inability to pay. Id. See also Pugh v. Pugh, 15 Ohio St.3d

136, 472 N.E.2d 1085 (1984).

{¶89} In the case at hand, Arun was ordered to pay $8,000 per month as temporary

spousal support commencing June 19, 2008. However, Arun simply refused to comply

with the terms of the court’s order and has not met his burden of establishing an inability

to pay. Further, Arun has failed to present any evidence or case law to support his

position that the trial court’s purge conditions were unreasonable or impossible for him to

satisfy. Marx v. Marx, 8th Dist. Cuyahoga No. 82021, 2003-Ohio-3536, ¶ 22.

{¶90} For these reasons, the trial court did not abuse its discretion in finding Arun

in contempt for failing to comply with the court’s temporary spousal support order.

{¶91} Arun’s eighth assignment of error is overruled.

Mona’s Cross-Appeal

I. Shareholder Loan

{¶92} In her second cross-assignment of error, Mona argues that the trial court

erred and abused its discretion in omitting the shareholder loan from the property division

and not awarding it to Mona or Arun or allocating it between the parties. We agree.

{¶93} As reflected in CBHC’s 2008 tax return, CBHC has a shareholder loan

payable to Arun in the sum of $405,071 as of December 31, 2008. In our view, the

shareholder loan was made from funds acquired during the parties’ marriage, and

therefore must be considered marital property. In completing his expert report, Ranallo

considered the shareholder loan as a liability of CBHC. As explained by Ranallo, if a hypothetical buyer purchased CBHC for its fair market value, it would assume the

liability owed under the shareholder loan. In other words, in addition to paying Arun the

fair market value of CBHC, the purchaser “would come in immediately owing [Arun] the

[value of the loan].”

{¶94} Because the shareholder loan was made with marital funds during the

parties’ marriage, we find that the trial court erred in failing to allocate the value of the

loan when dividing the parties’ marital property.

{¶95} Accordingly, Mona’s second cross-assignment of error is sustained, and the

matter is remanded for equitable division of the shareholder loan.

II. Marital Debt

{¶96} In her third cross-assignment of error, Mona argues that the trial court erred

and abused its discretion in determining that the line of credit account with KeyBank is a

marital debt. Mona contends that the trial court’s consideration of the line of credit as a

marital debt greatly impacted the determined equity in the parties’ marital home, located

at 6584 SOM Court, Mayfield Village, Ohio 44143 (“SOM Court property”).

{¶97} The property to be divided in a divorce proceeding includes not only the

assets owned by the parties, but also any debts incurred by the parties. Marrero v.

Marrero, 9th Dist. Lorain No. 02CA008057, 2002-Ohio-4862, ¶ 43. “Marital debt has

been defined as any debt incurred during the marriage for the joint benefit of the parties

or for a valid marital purpose.” Gupta v. Gupta, 8th Dist. Cuyahoga No. 99005, 2013-Ohio-2203, ¶ 51, citing Ketchum v. Ketchum, 7th Dist. Columbiana No. 2001 CO

60, 2003-Ohio-2559, ¶ 47.

{¶98} For the purpose of clarifying some apparent confusion associated with the

lines of credit at issue in this matter, we find it necessary to note that, as evidenced by

defendant’s exhibit HHH, Arun obtained two separate home equity lines of credit during

the parties’ marriage. The first line of credit was with KeyBank. The KeyBank line of

credit was taken out in the names of Arun and Mona and had a balance of $224,650.07 at

the time Mona’s complaint for divorce was filed. However, the evidence presented at

trial demonstrated that this line of credit had an outstanding balance of $225,106.28 as of

December 15, 2009.

{¶99} The second line of credit was with National City Bank. The record reflects

that the National City line of credit was taken out by Arun, individually, on November 20,

2007, and had an outstanding balance of $235,970.13 as of December 18, 2009. The

National City line of credit was secured by the SOM Court property.

{¶100} With respect to the line of credit with KeyBank, the record reflects that its

outstanding balance was paid in full on December 18, 2009. Nevertheless, the trial court

determined that the KeyBank line of credit was a marital debt, and it utilized the paid-off

value of $225,106.28 to determine the available equity in the SOM Court property.

{¶101} After a careful review of the record in its entirety, we find that the trial

court erred in utilizing the KeyBank balance to determine the parties’ marital debt. As

stated, at the time of trial, the outstanding balance on the Key Bank account had been paid in full from the proceeds from the November 2009 sale of the parties’ property at 6770

Sandalwood Drive, Mayfield Village, Ohio. (Plaintiff’s exhibit No. 55.) Therefore, the

trial court’s use of the $225,106.28 figure was improper because the marital debt

associated with the KeyBank account no longer existed and had been paid in full with

marital assets.

{¶102} Accordingly, the National City line of credit secured against the SOM

Court property was the only outstanding marital debt the trial court should have

considered when determining the equity in the property. It appears that the trial court’s

error in utilizing the KeyBank account to determine the equity in the SOM Court property

was caused by the magistrate’s statements at page 31 of its decision, where the court

seems to have commingled the two separate accounts, with two separate banks, and

treated them as one account.

{¶103} Based on the foregoing, we find it necessary to remand this matter so that

the trial court can properly determine the appropriate value of the marital debt associated

with the outstanding balance of the National City line of credit. We note that on remand,

the trial court will be required to address Mona’s arguments relating to Arun’s

withdrawals against the National City line of credit while a court-ordered temporary

restraining order was in place. As argued by Mona, the National City line of credit had

an outstanding balance of $124,438 as of June 18, 2008. However, as evidenced by

plaintiff’s exhibit No. 48 and defendant’s exhibit HHH, Arun made numerous

withdrawals against the National City line of credit, thereby increasing the outstanding balance of the line of credit to $235,970.13 as of December 18, 2009. Accordingly, on

remand, the trial court must consider whether Arun’s withdrawals against the National

City line of credit following the imposition of the temporary restraining order were done

for a “valid marital purpose” in order to determine the value of the parties’ marital debt in

the account.

{¶104} We note that the burden of proof lies with Mona to establish that the

withdrawals made after June 19, 2008, were not made for a marital purpose. See Gupta at

¶ 51 (“[t]he party seeking to establish a debt is separate rather than marital bears the

burden of proving this to the trial court”).

{¶105} Mona’s third cross-assignment of error is sustained.

III. Valuation of Marital Home

{¶106} In her fourth cross-assignment of error, Mona argues that the trial court

erred and abused its discretion in determining that the fair market value of the SOM Court

property was $351,500.

{¶107} In the case at hand, Arun purchased the SOM Court property for $399,900

on April 3, 2007. However, the record reflects that, prior to trial, the SOM Court

property was appraised and valued at $351,500. In determining the value of the property

for the purposes of dividing the marital property, the magistrate concluded that the

appraisal was “the best evidence available as to the current value of the marital

residence.” {¶108} In a divorce proceeding, the trial court must place a value on each

contested item of property in order to divide the property equitably. Pawlowski v.

Pawlowski, 83 Ohio App.3d 794, 615 N.E.2d 1071 (10th Dist.1992). Valuing property

involves factual inquiries requiring an appellate court to apply a manifest weight of the

evidence standard of review. Gentile v. Gentile, 8th Dist. Cuyahoga No. 97971,

2013-Ohio-1338, ¶ 73, citing Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 94456,

2011-Ohio-2255. Thus, an appellate court will not reverse a trial court’s valuation if it is

supported by some competent, credible evidence. Id., citing Haynes v. Haynes, 8th Dist.

Cuyahoga No. 92224, 2009-Ohio-5360.

{¶109} Moreover, a trial court has broad discretion to develop a measure of value

when dividing marital property. Id. at ¶ 16. Under the circumstances presented herein,

we are unable to conclude that the trial court abused its discretion in utilizing the

appraisal to measure the value of the SOM Court property. Although Mona may wish

that the home retained its value, the magistrate was well within her discretion to find that

the purchase price was not an accurate refection of the property’s present value.

Accordingly, we find that the magistrate’s determination that the fair market value of the

SOM Court property was $351,500 is supported by competent, credible evidence.

{¶110} Mona’s fourth cross-assignment of error is overruled.

IV. Incorporation of Magistrate’s Findings {¶111} In her fifth cross-assignment of error, Mona argues that the trial court erred

when it failed to incorporate the magistrate’s recommendation regarding the allocation of

the federal court judgment.

{¶112} In its decision, the magistrate stated: “The court finds that Arun’s unknown

amount of equity in the Jane Street property is marital. * * * Both parties shall equally

share the equity Arun has in 61 Jane Street, New York, New York, which exact dollar

amount is unknown to the Court.”

{¶113} In his response brief, Arun concedes that the trial court incorporated the

magistrate’s findings regarding the federal court judgment when it overruled his objection

to the magistrate’s opinion regarding that issue. See Judgment Entry at 3 (“The Court

hereby OVERRULES Defendant’s 5th, 6th, 7th, and 8th Objections”). Therefore, we

find that the trial court incorporated the magistrate’s recommendation in its final entry.

{¶114} Mona’s fifth cross-assignment of error is overruled.

V. Arun’s Passport

{¶115} In her sixth cross-assignment of error, Mona argues that the trial court

abused its discretion in sustaining Arun’s objection to the magistrate’s recommendation

that he surrender his passport to the trial court’s bailiff.

{¶116} A trial court’s ruling on objections to a magistrate’s decision will not be

reversed absent an abuse of discretion. Gobel v. Rivers, 8th Dist. Cuyahoga No. 94148,

2010-Ohio-4493, ¶ 16, citing Remner v. Peshek, 7th Dist. Mahoning No. 97-C.A.-98,

1999 Ohio App. LEXIS 4802 (Sept. 30, 1999). {¶117} After a careful review of the record and the concerns raised by Mona in her

appellate brief, we cannot say that the trial court abused its discretion by sustaining

Arun’s objection to the magistrate’s order requiring him to surrender his passport. While

the trial court’s order does not address the constitutionality of the magistrate’s order, there

is nothing in the record to support the magistrate’s concern that Arun, a 79-year-old man,

is a flight risk.

{¶118} Accordingly, Mona’s sixth cross-assignment of error is overruled.

{¶119} The trial court’s judgment is affirmed in part and reversed in part. We

remand this case to the trial court to correct the errors set forth in Mona’s first, second,

and third cross-assignments of error.

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

The court finds there were reasonable grounds for this appeal.

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

pleas court, domestic relations division, to carry this judgment into execution.

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

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

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

Appellant’s Assignments of Error: I. The trial court erred in its division of property by admitting the expert report of appellee, by determining that the value of appellant’s business was $1,500,000, and by allocating the asset to appellant.

II. The trial court erred in its division of property by not finding that Arun Chattree’s interest in the New York “cooperative apartment” was Arun Chattree’s separate property and by ignoring a $843,750 liability associated with the asset.

III. The trial court erred by failing to reduce the temporary spousal support order to zero based on Arun Chattree’s disability, age, and lack of earned income.

IV. The trial court erred by awarding unreasonable and inappropriate spousal support to appellee.

V. The trial court erred by not dividing appellant’s retirement benefits equally and by guaranteeing a “minimum” amount of benefits to appellee.

VI. The trial court erred by concluding that the cognovit judgment against Ritu Chattree was a marital asset and awarding Manorama Chattree and Arun Chattree each a one-half interest in the judgment.

VII. The trial court erred by requiring Arun Chattree to pay a portion of Manorama Chattree’s litigation expenses and substantially all of her attorney fees.

VIII. The trial court erred by finding Arun Chattree in contempt in regard to the temporary support order.

Appellee’s Cross-Assignments of Error:

I. The trial court erred and abused its discretion in determining the value of Community Behavioral Health Center was $1,500,000 when the evidence demonstrated that the fair market value of the business was $1,919,000.

II. The trial court erred and abused its discretion in omitting the shareholder loan from the property division and not awarding it to appellee or appellant or allocating it between the parties.

III. The trial court erred and abused its discretion in determining that the line of credit balance of $224,650.07 is a marital debt. IV. The trial court erred and abused its discretion in determining that the fair market value of the real property located at 6584 SOM Court, Mayfield Village, Ohio 44143 is $351,500 and consequently decreasing the equity associated with the real property.

V. The trial court erred when it failed to incorporate the magistrate’s recommendation regarding the allocation of the federal court judgment.

VI. The trial court abused its discretion in sustaining appellant’s objection to the magistrate’s recommendation that he surrender his passport to the trial court’s bailiff.