[Cite as Edje v. Holmes, 2024-Ohio-1663.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
LOUITO EDJE, : APPEAL NO. C-230286 TRIAL NO. DR-2200117 Plaintiff-Appellee, :
vs. :
SYLVESTER HOLMES, : O P I N I O N.
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 1, 2024
Barbara J. Howard Co., LPA, Barbara J. Howard and Rachel H Myers, for Plaintiff- Appellee,
Sylvester Holmes, pro se. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} In this divorce case, defendant-appellant Sylvester Holmes challenges
the trial court’s adoption of the magistrate’s decision. He contests several factual
findings in the division of property, including the characterization and valuation of the
real and personal property at issue. But Holmes failed to file a transcript both when
he objected to the magistrate’s decision and on appeal, which precludes a meaningful
review of these factual findings.
{¶2} Holmes also claims that the trial court ignored his financial
contributions to the purchase of real property during the marriage, and it was
therefore an abuse of discretion to award the equity in that property to plaintiff-
appellee Louito Edje. But because the magistrate found that Holmes financially
abandoned Edje and unfairly burdened her with financial obligations, it was
reasonable to award Edje the equity in the property as part of an equitable division of
property.
{¶3} Holmes maintains that it was an abuse of discretion to deny his request
for spousal support, to award him one-fourth of Edje’s retirement account, and to
award Edje attorney fees. But because the magistrate found that Holmes was not
“working to his fullest capacity” and failed to produce any evidence of his claims that
he was unable to find employment, it was reasonable to deny him spousal support. An
unequal division of retirement accounts was reasonable because Holmes failed to
comply with discovery and disclosure orders regarding his income, retirement, and
assets. Likewise, his noncompliance with discovery requests and court orders justified
awarding Edje attorney fees.
{¶4} We overrule Holmes’s six assignments of error and affirm the trial
court’s judgment. 2 OHIO FIRST DISTRICT COURT OF APPEALS
I. Facts and Procedure
{¶5} In 2019, Edje, a physician, married Holmes, an attorney, in Italy. Within
the first year of the marriage, the two purchased a $753,000 house on Spyglassridge
Drive in Cincinnati. But by December 2021, the two were living separately. The
following month, Edje filed for divorce.
{¶6} The magistrate held a two-day hearing related to the division of
property, spousal support, and attorney fees. In her decision, the magistrate identified
the Spyglassridge property as “marital/mixed real estate property subject to equitable
division in this case.” She awarded the Spyglassridge property to Edje free and clear of
any claims by Holmes. The magistrate found that Holmes had contributed $84,000 of
the $177,189.90 that had been “paid toward the initial purchase of the home” and that
Edje had paid the remainder. Further, Edje withdrew $49,000 from her retirement
fund for the purchase. The magistrate found that Holmes was not entitled to share the
equity or paydown in the marital residence because he failed to 1.) financially
contribute in any substantive manner to the marital obligations—more than
$28,000—that arose after the couple purchased the house; 2.) compensate people
working on the house, leaving that financial burden on Edje; and 3.) obtain
employment or contribute to household and mortgage expenses during most of the
marriage. Further, the magistrate sought to credit Edje for her financial losses
incurred from contributing from her retirement towards the home’s purchase.
{¶7} The magistrate awarded Edje, among other personal property, a pool
table “and the crystal vase gifted from her mother.” Apparently, the parties disputed
whether a vase in Holmes’s possession was that vase gifted to Edje from her mother.
To ensure that Edje received her vase, the magistrate ordered Holmes to “deliver and
present the crystal vase purported to have been purchased by him as shown in Exhibit 3 OHIO FIRST DISTRICT COURT OF APPEALS
B for inspection by [Edje]. If this vase is determined by [Edje] to in fact be the mother’s
gifted vase, the same shall be awarded to [Edje].”
{¶8} Turning to the retirement accounts, the magistrate found that Holmes
failed to provide financial records, including retirement accounts, which prevented her
from determining the extent of the retirement assets to create an equal distribution.
The magistrate found that an unequal division of the retirement funds was equitable
because of Holmes’s “failure to comply with discovery and disclosure orders as to [his]
income, retirement, assets and [his] overall lack of credibility.” The magistrate
awarded Holmes “$10,582.60 which represents twenty-five percent (25%) of the
marital portion of [Edje]’s retirement.”
{¶9} The magistrate denied Holmes’s request for spousal support, which she
found was “neither appropriate nor reasonable” under R.C. 3105.18.
{¶10} Finally, the magistrate awarded Edje $3,750 in attorney fees due to
Holmes’s “repeated failure to comply with discovery requests and mandatory
disclosures in a timely fashion.”
{¶11} Holmes objected to the magistrate’s decision to 1.) award the vase and
Spyglassridge property to Edje, 2.) classify the parties’ pensions as separate property,
and 3.) deny Holmes spousal support. But Holmes failed to file a transcript of
proceedings. He sought to provide an audio recording of the hearings in lieu of a
transcript. The trial court denied that request. The trial court also denied Holmes’s
objections and adopted the magistrate’s decision. In doing so, the trial court
highlighted the lack of a transcript of the proceedings. Following a hearing on the
merits, the trial court issued a divorce decree.
4 OHIO FIRST DISTRICT COURT OF APPEALS
II. Law and Analysis
{¶12} Holmes raises six assignments of error, contesting the trial court’s
adoption of the magistrate’s decision. Specifically, he takes issue with the division of
property, award of attorney fees, and denial of spousal support.
{¶13} As an initial matter, Holmes relies on several exhibits attached to his
appellate brief that were not submitted to the trial court and are otherwise not part of
the record. We cannot consider them. See Chia Chi Ho v. Carlos Chua Co, 1st Dist.
Hamilton No. C-220319, 2023-Ohio-2969, ¶ 15. On appeal, “ ‘we are limited to the
record before the trial court.’ ” Id., quoting State v. Wilson, 2d Dist. Clark No. 2018-
CA-2, 2020-Ohio-2962, ¶ 29. “ ‘[T]he record on appeal’ is composed of three
categories of documents identified in App.R. 9: ‘[t]he original papers and exhibits
thereto filed in the trial court[;] the transcript of proceedings, if any, including
exhibits[;] and a certified copy of the docket and journal entries prepared by the clerk
of the trial court.’ ” State v. Bumu, 1st Dist. Hamilton No. C-160492, 2017-Ohio-6901,
¶ 13, quoting App.R. 9(A)(1). This court will disregard any exhibits that are not in the
record when we consider the merits of Holmes’s arguments.
Property divisions in divorce proceedings
{¶14} We begin with the trial court’s division of property, which is governed
by R.C. 3105.171. We review the trial court’s adherence to R.C. 3105.171’s statutory
directives de novo. Stapleton v. Stapleton, 1st Dist. Hamilton No. C-210329, 2022-
Ohio-3018, ¶ 23. In divorce proceedings, the trial court must identify marital and
separate property, and “divide the marital and separate property equitably between
spouses.” R.C. 3105.171(B).
{¶15} But there is no one-size-fits-all formula for fashioning an equitable
division of property. See Berish v. Berish, 69 Ohio St.2d 318, 321, 432 N.E.2d 183 5 OHIO FIRST DISTRICT COURT OF APPEALS
(1982). Therefore, in divorce cases, we afford deference to the lower court as it
“fulfill[s] its weighty responsibility [and] resolv[es] the property issues based on the
relevant facts and circumstances of each unique case.” Stapleton at ¶ 27, citing Berish
at 321. Consistent with this deference, we typically review an equitable division of
property for an abuse of discretion. Id. When an appeal raises a factual issue as to the
value or characterization of property, we review the sufficiency or manifest weight of
the evidence. Carter v. Carter, 1st Dist. Hamilton No. C-230322, 2024-Ohio-1046,
¶ 19, citing McKenna v. McKenna, 1st Dist. Hamilton No. C-180475, 2019-Ohio-3807,
¶ 9-10.
{¶16} But significantly, Holmes failed to file a transcript when he objected to
the magistrate’s decision. In these circumstances, “the trial court presumes that the
magistrate’s factual findings are correct.” Gregory v. Gregory, 1st Dist. Hamilton No.
C-180444, 2019-Ohio-5210, ¶ 22. To review “ ‘a judgment rendered without the benefit
of a transcript or affidavit, [this] court only considers whether the trial court correctly
applied the law to the facts as set forth in the magistrate’s decision.’ ” Fogt v. Fogt, 3d
Dist. Defiance No. 4-18-10, 2019-Ohio-1403, ¶ 17, citing In re Estate of Stanford, 2d
Dist. Montgomery No. 23249, 2010-Ohio-569, ¶ 22, quoting In re Estate of Lucas, 2d
Dist. Montgomery No. 23088, 2009-Ohio-6392, ¶ 32, citing Ross v. Cockburn, 10th
Dist. Franklin No. 07AP-967, 2008-Ohio-3522, ¶ 5-6. Specifically, our review is
“limited to determining if the trial court abused its discretion” in its application of law
to the magistrate’s factual findings. In re Adoption of S.J.M.H., 1st Dist. Hamilton No.
C-130683, 2014-Ohio-3565, ¶ 33. An abuse of discretion means that the trial court’s
decision-making must be unreasonable, arbitrary, or unconscionable. Owens v.
Owens, 1st Dist. Hamilton No. C-210488, 2022-Ohio-3450, ¶ 14.
6 OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} When dividing marital property, R.C. 3105.171(C)(1) prescribes an equal
division of property unless dividing the property equally would be inequitable. If an
equal division is found to be inequitable, property must be divided in the manner the
court determines equitable. R.C. 3105.171(C)(1). What is equitable depends on the
value of the property and the trial court’s consideration of the nonexhaustive statutory
factors listed in R.C. 3105.171(F). See Stapleton, 1st Dist. Hamilton No. C-210329,
2022-Ohio-3018, at ¶ 23. The trial court must consider:
(1) The duration of the marriage;
(2) The assets and liabilities of the spouses;
(3) The desirability of awarding the family home, or the right to reside
in the family home for reasonable periods of time, to the spouse with
custody of the children of the marriage;
(4) The liquidity of the property to be distributed;
(5) The economic desirability of retaining intact an asset or an interest
in an asset;
(6) The tax consequences of the property division upon the respective
awards to be made to each spouse;
(7) The costs of sale, if it is necessary that an asset be sold to effectuate
an equitable distribution of property;
(8) Any division or disbursement of property made in a separation
agreement that was voluntarily entered into by the spouses;
(9) Any retirement benefits of the spouses, excluding the social security
benefits of a spouse except as may be relevant for purposes of dividing
a public pension;
7 OHIO FIRST DISTRICT COURT OF APPEALS
(10) Any other factor that the court expressly finds to be relevant and
equitable.
R.C. 3105.171(F).
{¶18} What is equitable turns on the totality of the circumstances. See
Roetting v. Roetting, 12th Dist. Butler No. CA2014-06-128, 2015-Ohio-2461, ¶ 21; see
also Brown v. Brown, 1st Dist. Hamilton No. C-040341, 2005-Ohio-1997, ¶ 13 (“A
reviewing court is limited to determining whether, considering the totality of the
circumstances, the trial court’s disposition of marital property was an abuse of
discretion.”).
1. We affirm the trial court’s award of equity in the Spyglassridge property to Edje
{¶19} In his first assignment of error, Holmes argues that the trial court erred
when it adopted the magistrate’s equitable property division. He begins with a claim
that “[t]he trial court abused its discretion by ruling that the Appellee met her burden
of proof of providing clear and convincing evidence that the Marital Real Property
purchased during the marriage was her separate property under Ohio Domestic
Relations law.”
A. We cannot review factual determinations without a transcript
{¶20} Holmes relies on exhibits attached to his appellate brief to argue that
the magistrate undervalued his contribution to the initial payment of the
Spyglassridge property. But again, “[a] reviewing court cannot add matter to the
record before it, which was not a part of the trial court’s proceedings, and then decide
the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 402,
377 N.E.2d 500 (1978). The record does include a May 2020 letter in which Holmes
agreed to transfer $78,000 to Edje. Holmes is correct that the magistrate mistakenly
found that he agreed to transfer $84,000 to Edje in that letter. But the magistrate 8 OHIO FIRST DISTRICT COURT OF APPEALS
overvalued his contribution, so this error is harmless. See Civ.R. 61. The record
includes an unsigned three-month lease for the Spyglassridge property and a
December wire transfer to Edje, which Holmes claims show that the magistrate
incorrectly valued his contribution.
{¶21} But “when a party challenges the trial court’s finding of fact as to the
characterization of property as separate or marital, we must review that determination
under a manifest-weight-of-the-evidence standard.” Dunn v. Dunn, 1st Dist. Hamilton
Nos. C-010282 and C-010292, 2002-Ohio-6247, ¶ 12. Likewise, valuation of property
is a factual issue. But Holmes’s failure to provide a transcript prevents a meaningful
review of these factual findings. See Elsner v. Birchall, 2018-Ohio-2521, 114 N.E.3d
791, ¶ 31 (8th Dist.).
{¶22} Holmes correctly notes that the magistrate failed to set a value for the
debt associated with the work on the Spyglassridge property. Before fashioning a
division of property, the “trial court must select a valuation date and determine a value
for property found to be a marital asset.” Stapleton, 1st Dist. Hamilton No. C-210329,
2022-Ohio-3018, at ¶ 24. But “[w]hen a party fails to provide the court with evidence
as to the value of an item, the party may be found to have waived the right to appeal
with regard to that asset.” Smith v. Smith, 2017-Ohio-44, 80 N.E.3d 1091, ¶ 26 (6th
Dist.), citing Roberts v. Roberts, 10th Dist. Franklin No. 08AP-27, 2008-Ohio-6121,
¶ 21; see Gregory v. Falcon, 5th Dist. Licking No. 2022 CA 00051, 2023-Ohio-1741, ¶
30; see also Machesky v. Machesky, 4th Dist. Ross No. 10CA3172, 2011-Ohio-862,
¶12; Sieber v. Sieber, 2015-Ohio-2315, 37 N.E.3d 776, ¶ 34 (12th Dist.). The limited
record before us contains no evidence from Holmes of the debt. This argument is
therefore waived.
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} And regardless of these fact-based arguments, we disagree that the
magistrate characterized the Spyglassridge property as Edje’s separate property.
Rather, the magistrate identified the house as marital/mixed property.
B. Awarding Edje the equity in the property was reasonable
{¶24} Holmes appears to argue that it was inequitable to award Edje the entire
Spyglassridge property due to his contributions toward the initial purchase. We
understand this argument as an assertion that the award was an abuse of discretion.
But we disagree with that assertion.
{¶25} The magistrate “considered all of the evidence presented and the
applicable law1 to arrive at an equitable allocation as it relates to property division.”
The magistrate took Holmes’s $84,000 contribution towards the initial payment into
account but found that Holmes did not honor their agreement to split the mortgage
payments and abandoned Edje financially. The magistrate considered this an “unfair
burden.” She found that Edje was “solely financially responsible for the mortgage
payments and maintenance.” From June 2020 to December 2021, Edje alone paid
down $10,901.87 on the principal balance. Edje was also left to pay various contractors
and maintenance workers for work performed on their house. These findings support
the magistrate’s awarding the entire equity in the Spyglassridge property to Edje.
{¶26} In Grimes v. Grimes, 2d Dist. Greene No. 2013-CA-047, 2014-Ohio-
729, the Second District upheld an award of the entire equity in the marital residence
to the wife as an appropriate exercise of discretion where the husband “unjustifiably
failed to work and that his refusal to work placed an unfair burden on [the wife] to be
1 The magistrate’s decision explained that it must consider the factors “provided in R.C. 3105.17,”
but this appears to be a clerical error. 10 OHIO FIRST DISTRICT COURT OF APPEALS
responsible for the parties’ living expenses.” Id. at ¶ 13. Similar to Grimes, the
magistrate’s findings in this case state that Holmes was unemployed, was not “working
to his fullest capacity in his field,” and “placed an unfair burden on [Edje] to be
responsible for [the] parties’ living expenses.” Indeed, the magistrate explained that
Holmes left his position as an attorney with a corporation in which he earned
$200,000 per year to accept a part-time position, only to be fired from that position
six months into the marriage.
{¶27} The trial court’s awarding the entire equity in the property to Edje was
not an abuse of discretion.
C. Holmes waived any equitable-estoppel argument
{¶28} Holmes turns his focus to emails from Edje that are in the record—
emails that he claims are “clear evidence of the parties’ intent.” In the emails, Edje
instructs their attorney to include Holmes’s name on the deed to the house. Relying
on these statements, he cites the doctrine of equitable estoppel to argue that she
cannot now claim the Spyglassridge property as separate property. But Homes failed
to raise this issue in his closing argument or in his objections to the magistrate’s
decision and therefore has forfeited his right to raise it for the first time on appeal. See
Linder v. Ohio Dept. of Aging, 1st Dist. Hamilton No. C-210247, 2022-Ohio-177, ¶ 15.
{¶29} In sum, Holmes’s arguments related to the valuation of his financial
contributions are unreviewable, his challenge to the characterization of the property
is both unreviewable and a misreading of the magistrate’s decision, and awarding Edje
the entire equity in the property was not an abuse of discretion. We overrule Holmes’s
first assignment of error.
11 OHIO FIRST DISTRICT COURT OF APPEALS
2. The classifications of the pool table and vase are unreviewable
{¶30} In his second assignment of error, Holmes argues that the trial court
abused its discretion when it awarded the vase and pool table to Edje as her separate
property. Specifically, he claims that “[t]he [c]ourt abused its discretion in awarding
[Edje] the vase as it was against the manifest weight of the evidence.” Likewise, he
argues that it “abused its discretion in awarding [Edje] the pool table as it was against
the manifest weight of the evidence.”
{¶31} But these arguments run into a recurring problem for Holmes.
Classification of property as marital or separate property are questions of fact and are
“ ‘reviewed under the distinct sufficiency-and-weight-of-the-evidence standards.’ ”
Tyra v. Tyra, 1st Dist. Hamilton No. C-210392, 2022-Ohio-2504, ¶ 11, quoting
Boolchand v. Boolchand, 1st Dist. Hamilton Nos. C-200111 and C-200120, 2020-
Ohio-6951, ¶ 9, citing McKenna v. McKenna, 1st Dist. Hamilton No. C-180475, 2019-
Ohio-3807, ¶ 9. Even if we were able to weigh the evidence, we are instructed to be
“mindful of the presumption in favor of the finder of fact.” Id. But because Holmes
failed to file a transcript, we proceed under an assumption that the magistrate’s
findings are correct.
{¶32} Under R.C. 3105.171(B), a court must determine what constitutes
marital property and separate property. Marital property is “ ‘real or personal property
owned by either spouse, including retirement benefits acquired during the marriage
and interest in those benefits. Marital property does not include any separate
property.’ ” Mullins v. Mullins, 1st Dist. Hamilton No. C-220389, 2023-Ohio-3266,
¶ 14, quoting Devito v. Devito, 1st Dist. Hamilton No. C-210523, 2022-Ohio-2563,
¶ 22. In contrast, separate property is “ ‘property acquired before the marriage and
certain other property, such as inheritances and gifts, acquired by one spouse during 12 OHIO FIRST DISTRICT COURT OF APPEALS
the marriage. A spouse may retain separate property despite having commingled it
with marital property, because as long as it is traceable, separate property retains its
identity.’ ” Id.
{¶33} The magistrate awarded the parties their personal property, which for
Edje included the pool table and “the crystal vase gifted from her mother.” In her
findings of fact, the magistrate explained that Edje requested “a crystal vase given to
her by her mother,” which Edje believed was in Holmes’s possession. The magistrate
explained that Holmes “denies the vase he currently has in his possession belongs to
[Edje] or is the same vase gifted” to her. In her conclusions of law, the magistrate’s
award of the vase included the following instruction:
To ensure [Edje] receives the awarded item, [Holmes] must also deliver
and present the crystal vase purported to have been purchased by him
as shown in Exhibit B for inspection by [Edje]. If this vase is determined
by [Edje] to in fact be the mother’s gifted vase, the same shall be
awarded to [Edje].
{¶34} Holmes is correct that his evidence includes a receipt for purchase of a
glass vase and social media posts with pictures of the vase that predate the marriage.
But again, his arguments emphasize what Edje’s testimony did and did not establish.
These arguments are precisely why “ ‘a manifest weight argument * * * is impossible
to properly evaluate in the absence of a complete transcript of proceedings to review.
* * * Thus, in the absence of a complete record sufficient for appellate review, we must
presume the regularity of the proceedings below.’ ” Givens v. Yates, 7th Dist. Belmont
Nos. 22 BE 0043 and 22 BE 0044, 2023-Ohio-4731, ¶ 10, quoting Palmer v. Palmer,
7th Dist. Belmont No. 12 BE 12, 2013-Ohio-2875, ¶ 2. Plus, the magistrate recognized
the possibility that two vases existed. She did not award Edje Holmes’s glass vase, but 13 OHIO FIRST DISTRICT COURT OF APPEALS
instead permitted Edje to inspect the vase of which Holmes claimed ownership to
determine if it was, in fact, the vase gifted to her by her mother.
{¶35} Turning to the pool table, Holmes argues that “[i]n a subsequent motion
on June 18, 2023, to clarify the Magistrate’s decision on dividing property at the
Marital Real Property, the Magistrate expressed an intent to give [Edje] ownership
and possession of a pool table on the basis [Holmes] failed to reference the pool table
while on the stand.” Again, we are unable to make a meaningful review of the evidence
without the transcripts, which Holmes failed to file. Holmes is correct that Edje
acknowledged in her written closing arguments that the pool table was Holmes’s
separate property. But courts are not required to accept a party’s concession. See State
v. Smith, 2019-Ohio-4706, 149 N.E.3d 184, ¶ 9 (2d Dist.), fn. 3; see also State v.
Hermes, 6th Dist. Ottawa Nos. OT-22-026 and OT-22-027, 2023-Ohio-2011, ¶ 26;
State v. Gabbard, 12th Dist. Butler No. CA2020-12-125, 2021-Ohio-3646, ¶ 20.
{¶36} Holmes also marshals another equitable-estoppel argument regarding
the pool table, based on Edje’s representation to the magistrate that the pool table was
Holmes’s separate property. But once again, he failed to raise this argument when he
objected to the magistrate’s decision, and it is therefore forfeited on appeal.
{¶37} Without a transcript, Holmes’s claims regarding the vase and pool table
are unreviewable. We overrule his second assignment of error.
3. The trial court’s attorney-fees award was reasonable
{¶38} In his third assignment of error, Holmes argues that awarding Edje
attorney fees constituted an abuse of discretion. He claims that Edje’s attorney’s
misconduct, his lack of financial resources, and his misunderstandings about
discovery timelines all cut against an award of attorney fees.
14 OHIO FIRST DISTRICT COURT OF APPEALS
{¶39} In a divorce action, a court “may award all or part of reasonable
attorney’s fees and litigation expenses to either party if the court finds the award
equitable.” R.C. 3105.73(A). In determining whether an award is equitable, “the court
may consider the parties’ income, the conduct of the parties, and any other relevant
factors the court deems appropriate.” Id. We review the trial court’s attorney-fees
award for an abuse of discretion. Morrison v. Walters, 1st Dist. Hamilton Nos. C-
220643 and C-220644, 2023-Ohio-2887, ¶ 12 (“Morrison II”), quoting Patterson v.
Patterson, 197 Ohio App.3d 122, 2011-Ohio-5644, 966 N.E.2d 898, ¶ 7 (1st Dist.).
{¶40} The trial court awarded Edje $3,750 in attorney fees. The magistrate
deemed that award “reasonable based upon [Holmes’s] repeated failure to comply
with discovery requests and mandatory disclosures in a timely fashion.” She noted that
Homes even failed to comply with a court order compelling his compliance. That order
required Holmes to respond to Edje’s discovery requests by August 15, 2022. But two
weeks after that deadline, he failed to “supplement/submit sworn answers to the
itemized interrogatories and only partial and late compliance with the previously
unsubmitted document requests.”
{¶41} Clearly, pretrial conduct is relevant to whether an attorney-fees award
is equitable. A court may award attorney fees due to an opposing party’s “delayed,
incomplete, and sometimes evasive” discovery responses that “prolong[ed] the
proceedings.” Bain v. Levinstein, 8th Dist. Cuyahoga No. 94313, 2010-Ohio-5596,
¶ 15. That is so because when “one party’s improper actions force the other to turn to
the court[,] * * * principles of equity allow the trial court to exercise its discretion in
determining the appropriate awards based on the parties’ respective behavior.”
Padgett v. Padgett, 10th Dist. Franklin No. 08AP-269, 2008-Ohio-6815, ¶ 17.
15 OHIO FIRST DISTRICT COURT OF APPEALS
{¶42} Holmes relies on Edje’s testimony, which he claims was perjured, to
argue that unclean hands prevented the court from awarding Edje attorney fees. But
once again, we cannot review the trial testimony without the transcript. The attorney-
fee award is reasonable considering the magistrate’s factual findings. We overrule
Holmes’s third assignment of error.
4. The trial court reasonably denied Holmes’s request for spousal support
{¶43} In his fourth assignment of error, Holmes challenges the trial court’s
decision to deny his request for spousal support from Edje. He requested, at a
minimum, $15,000 in spousal support.
{¶44} Spousal-support determinations are an exercise of a court’s broad
discretion, which we will not reverse absent an abuse of discretion. Morrison v.
Walters, 1st Dist. Hamilton No. C-210398, 2022-Ohio-1740, ¶ 3 (“Morrison I”),
quoting Reese v. Reese, 2019-Ohio-2810, 139 N.E.3d 1288, ¶ 11 (1st Dist.).
{¶45} Following an equitable division of property, the trial court “may award
reasonable spousal support to either party.” R.C. 3105.18(B). The trial court must
consider the following factors when determining if an award of spousal support is
appropriate and reasonable:
(a) The income of the parties, from all sources * * *;
(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;
16 OHIO FIRST DISTRICT COURT OF APPEALS
(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
R.C. 3105.18(C)(1).
{¶46} The magistrate found that awarding Holmes spousal support was not
appropriate or reasonable under R.C. 3105.18. Holmes disagrees and appears to argue
that the income of the parties under R.C. 3105.19(C)(1)(a) and his lost income 17 OHIO FIRST DISTRICT COURT OF APPEALS
production capacity due to his marital responsibilities under R.C. 3105.18(C)(1)(m)
support an award of spousal support.
{¶47} Holmes asserts that Edje misled Holmes into thinking “she would follow
marriage vows faithfully and be a supportive partner.” He maintains that this belief
contributed to his decision to “accept[] a new jobthat [sic] paid less than 50% of my
previous salary” because it “allowed [Holmes] to work remotely” and allowed him “to
move to Cincinnati where [Edje] had secured employment.” But she “changed the
narrative” at trial. As for her income, Holmes claims that Edje misrepresented her
income at the hearing and in her evidence. But just as the trial court was obligated to
accept the magistrate’s factual findings because Holmes had failed to file a transcript,
we too are restrained from any inquisition into the facts surrounding her income.
{¶48} The magistrate found that Holmes’s current annual income is $49,020,
and Edje’s is $369,249. There is a significant disparity, just as Holmes contends. The
magistrate also explained that Holmes earned in excess of $200,000 annually as a
full-time corporate attorney, but “voluntarily left that employment and accepted part-
time employment [] in anticipation of heading toward retirement age and to be able to
work remotely.” And she explained that after Holmes was terminated from his part-
time position, he “claims to be so far unsuccessful in finding legal work.”
{¶49} The party requesting support “ ‘has the burden of producing evidence as
to any of the R.C. 3105.18(C)(1) factors it wants considered, and must provide facts
tending to prove its version of the manner in which such factors should be applied.’ ”
Morrison I, 1st Dist. Hamilton No. C-210398, 2022-Ohio-1740, at ¶ 8, quoting Hunley
v. Hunley, 12th Dist. Clermont No. CA2019-12-101, 2020-Ohio-5053, ¶ 27. And
relevant here, “[d]eterminations of earning ability are not limited to current income,
‘but may also hold a person accountable for the amount of money the person could 18 OHIO FIRST DISTRICT COURT OF APPEALS
have earned if he or she had made the effort.’ ” Id. at ¶ 8, quoting Schenck v. Schenck,
12th Dist. Butler No. CA2012-08-150, 2013-Ohio-991, ¶ 17. The magistrate found that
Holmes “did not provide any evidence of physical or mental impairment or limitations
on his ability to work.”
{¶50} Recently in Morrison I, we affirmed the trial court’s decision to deny
spousal support to Walters, a retiree, despite “a considerable difference” in the parties’
current incomes, because of Walters’s preretirement income that was “comparable to
what Ms. Morrison now makes.” Morrison I at ¶ 6. We rejected Walters’s claim that
no company would hire him because his IT “skills are six years out of date” as
“conclusory statements” that failed to “convince us that Mr. Walters does not have
viable, marketable skills that could generate substantial income if he so desired.” Id.
Plus, this court reasoned that Walters “left the marriage with no debt, ample financial
resources, and assets and skills substantial enough to provide a standard of living
comparable to the one he enjoyed during the marriage.” Id. at ¶ 8. Finally, this court
explained that Walters was unable to “complain if the R.C. 3105.18(C)(1) factor
regarding earning ability did not come out quite the way that he wanted, particularly
when he failed to substantiate his position with adequate evidence.” Id. at ¶ 8.
{¶51} Just as in Morrison I, the magistrate could have reasonably concluded
that Holmes is underemployed and has “assets and skills substantial enough to
provide a standard of living comparable” to that during the marriage. Indeed, the
magistrate found that Holmes, armed with decades of experience as an attorney with
a $200,000 annual salary, did “not appear to be working to his fullest capacity in his
field.” It was therefore reasonable to conclude, based on these factual findings, that
spousal support was not appropriate.
{¶52} We overrule Holmes’s fourth assignment of error. 19 OHIO FIRST DISTRICT COURT OF APPEALS
5. The trial court’s division of retirement funds and pensions was reasonable
{¶53} Holmes’s fifth assignment of error challenges his award of 25 percent of
the portion of Edje’s retirement benefits accrued during the marriage. He claims that
the magistrate failed to follow the relevant statutory mandates. He recognizes that the
law does not require an equal division of pension benefits and that a court may deviate
from an equal division if equity and fairness support such a deviation, but he
maintains that the deviation in this case lacks an appropriate rationale. In support,
Holmes cites “Brown v. Brown, 54 Ohio St.3d 216 (1990),” which does not exist.2
{¶54} Marital property subject to a property division includes retirement
benefits acquired during the marriage and “any ‘currently’ held ‘interest’ in the
‘retirement benefits of the spouses’ that was ‘acquired by either or both of the spouses
during the marriage.’ ” Boolchand, 1st Dist. Hamilton Nos. C-200111 and C-200120,
2020-Ohio-6951, at ¶ 6, quoting R.C. 3105.171(A)(3)(a)(iii). To divide pension and
retirement benefits in an equitable and fair manner, “ ‘the trial court must apply its
discretion based on the circumstances of the case, the status of the parties, the nature,
terms and conditions of the pension or retirement plan, and the reasonableness of the
result.’ ” Id. at ¶ 16, quoting Hoyt v. Hoyt, 53 Ohio St.3d 177, 179, 559 N.E.2d 1292
(1990). We review a trial court’s division of retirement and pension benefits for an
abuse of discretion. Id. at ¶ 9.
{¶55} The magistrate identified two retirement funds in Edje’s name including
one from her current employer held in IRA accounts. The magistrate found that “[t]he
potential marital portion of these IRA’s (taking tax implications into account) if
2 Indeed, there was no Ohio Supreme Court case entitled Brown v. Brown released in 1990.
20 OHIO FIRST DISTRICT COURT OF APPEALS
equally divided total $21,165.21.” The magistrate awarded Holmes “$10,582.60, which
represents twenty-five percent (25%) of the marital portion of [Edje]’s retirement.”
{¶56} Holmes cites Edje’s IRA statements to argue the marital portion of
Edje’s retirement and pension benefits totaled $62,954.22. He maintains that a 50
percent division of that total is a “guideline,” “starting point,” and later, a “statutory
calculation that is standard.” But the magistrate used an equal division as a starting
point and simply factored the tax consequences into its division of Edje’s retirement
funds. The decision to reduce a retirement or pension plan “by estimated future tax
consequences on distribution and, if so, by how much, are factors best left to the
discretion of the trial court after hearing all the evidence and any expert testimony as
to those tax consequences.” Noll v. Noll, 55 Ohio App.3d 160, 163-164, 563 N.E.2d 44
(6th Dist.1989).
{¶57} Further, the magistrate found that Holmes was “employed for a period
at the beginning of the marriage where he would have accumulated
retirement/pension benefits.” But, the magistrate explained, Holmes
failed to provide Counsel and the Court with multiple financial records,
including the balances of any retirement accounts as of the date of
separation and in fact, denied any such earnings despite his
employment at the time, making it impossible to determine the values
of such retirement assets and offsets for purposes of an equal
distribution.
So the magistrate found that an unequal division of Edje’s retirement accounts was
equitable “based on [Holmes’s] failure to comply with discovery and disclosure orders
as to [his] income, retirement, assets, and [his] overall lack of credibility.”
21 OHIO FIRST DISTRICT COURT OF APPEALS
{¶58} As with all other property to be divided, “[w]hen a party fails to provide
the court with evidence as to the value of an item, the party may be found to have
waived the right to appeal with regard to that asset.” Smith v. Smith, 2017-Ohio-44,
80 N.E.3d 1091, ¶ 26 (6th Dist.), citing Roberts v. Roberts, 10th Dist. Franklin No.
08AP-27, 2008-Ohio-6121, ¶ 21. While a party has the right to be “ ‘less than
forthcoming in the presentation of evidence * * * [as] a kind of trial strategy, it is not
and cannot be grounds for an appeal.’ ” Goebel v. Goebel, 10th Dist. Franklin No. 15AP-
61, 2015-Ohio-5547, ¶ 11, quoting Walls v. Walls, 4th Dist. Highland No. 94 CA 849,
1995 Ohio App. LEXIS 2005, at *8 (May 4, 1995). In the past, we have applied these
principles to a division of retirement and pension benefits. See Thompson v.
Thompson, 1st Dist. Hamilton No. C-050578, 2006-Ohio-2623, ¶ 18 (“Virginia refused
to provide the court with any information about her employment, income, or living
expenses. The court’s hands were thus tied when it held that Monroe should retain his
pension and retirement benefits.”).
{¶59} All told, the division of Edje’s retirement funds was not unreasonable
considering the magistrate’s inclusion of future tax consequences in her calculation
and Holmes’s failure to produce evidence of his retirement accounts. We overrule his
fifth assignment of error.
6. The trial court considered Holmes’s “legal arguments”
{¶60} In his sixth and final assignment of error, Holmes argues that the trial
court erred when it overruled his objections to the magistrate’s decision because of his
failure to provide a transcript of the proceedings. He maintains that the trial court
failed to consider the legal arguments he presented to the trial court in his objections.
{¶61} Civ.R. 53(D)(3)(b)(iii) instructs objecting parties that an objection to
factual findings must “be supported by a transcript of all the evidence submitted to the 22 OHIO FIRST DISTRICT COURT OF APPEALS
magistrate relevant to that finding or an affidavit of that evidence if a transcript is not
available.” See Stricker v. Stricker, 1st Dist. Hamilton No. C-060435, 2007-Ohio-
3309, ¶ 11 (“A party objecting to a domestic relations magistrate’s decision on the basis
that the decision is unsupported by the evidence or contrary to the weight of evidence
must submit to the court a typed transcript of all evidence relevant to the findings or
order.”).
{¶62} Once again, when an objecting party fails to file a transcript, the trial
court must accept the magistrate’s factual findings and apply the law to those facts.
See Gregory v. Gregory, 1st Dist. Hamilton No. C-180444, 2019-Ohio-5210, ¶ 22; see
also Fogt, 3d Dist. Defiance No. 4-18-10, 2019-Ohio-1403, at ¶ 13. The objecting party
“cannot demonstrate error with respect to factual findings” without a transcript.
Bayview Loan Servicing, L.L.C. v. Likely, 2017-Ohio-7693, 97 N.E.3d 1025, ¶ 12 (9th
Dist.). Likewise, “when a party objects but does not provide the trial court with the
transcripts necessary to review the objections, there are serious consequences for
appellate review.” Id.
{¶63} The trial court overruled Holmes’s objections and explained that
“[u]pon a careful and independent analysis of the record herein for all
Defendant/Husband’s objections, and absent a transcript which was not provided, the
Court finds that the Magistrate’s Decision is supported by competent and credible
evidence.”
{¶64} Despite Holmes’s contention that the trial court ignored his legal
arguments, his objections primarily disputed the magistrate’s factual and credibility
determinations. When he challenged the award of the Spyglassridge property, Holmes
argued that “the [m]agistrate decided to go against the weight of the evidence to accept
23 OHIO FIRST DISTRICT COURT OF APPEALS
[Edje’s] bare statements,” and that the magistrate “failed to weigh the evidence with
respect to [the] marital property.”
{¶65} When he referenced broad legal concepts, he failed to cite a single legal
authority in support of his claims. For instance, he argued that the magistrate “applied
a different standard of review []to the Defendant’s interest in the case versus the
standard that is applied to other similarly situated litigants” and “failed to apply
standard Ohio domestic relations legal principles to this case.” And these assertions
were sprinkled throughout a plethora of factual contentions. To quote one federal
district court, “facts dumped into a brief do not make a legal argument.” SYNY
Logistics, Inc. v. Great Lakes Ins. SE, N.D.Ill. No. 22-cv-764, 2023 U.S. Dist. LEXIS
176436, 17 (Sep. 30, 2023).
{¶66} We overrule Holmes’s sixth assignment of error.
III. Conclusion
{¶67} We overrule Holmes’s six assignments of error and affirm the trial
court’s judgment.
Judgment affirmed.
WINKLER and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.