[Cite as Hawkins v. Hawkins, 2017-Ohio-4201.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
DONNA HAWKINS : : Plaintiff-Appellee : C.A. CASE NO. 2016-CA-26 : v. : T.C. NO. 2013-DR-190 : GREGORY D. HAWKINS : (Civil Appeal from Common Pleas : Court, Division of Domestic Relations) Defendant-Appellant : :
...........
OPINION
Rendered on the 9th day of June, 2017.
RONALD C. TOMPKINS, Atty. Reg. No. 0030007, 121 S. Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
JOHN C.A. JUERGENS, Atty. Reg. No. 0037120, 1504 N. Limestone Street, Springfield, Ohio 45503 Attorney for Defendant-Appellant
.............
DONOVAN, J. -2-
{¶ 1} Defendant-appellant Gregory D. Hawkins appeals from a decision of the
Champaign County Court of Common Pleas, Domestic Relations Division, granting
him and plaintiff-appellee Donna Hawkins “Judgment Order and Decree of Divorce”
on September 20, 2016. Gregory filed a timely notice of appeal with this Court on
October 20, 2016.
{¶ 2} Gregory and Donna were originally married in 1976, but divorced four
years later in 1980. Although they were divorced, the parties continued to
cohabitate with one another for the next twenty-two years. In 2002, the parties
remarried in Las Vegas, Nevada. We note that two children were born as a result
of the parties’ union, but both children were emancipated at the time that the instant
litigation occurred.
{¶ 3} The parties are owners of real property located at the following
addresses: 2529 St. Rt. 245, Cable, Ohio (the marital residence), and a 5.708 acre
lot located next to the marital residence. The parties purchased the properties in
1995 and 1998, respectively, prior to their remarriage in 2002. Also at issue was
Gregory’s business, Pro-Rite Mufflers, located at 396 E. 9th Street in Marysville,
Ohio. The evidence established that Gregory opened his business in 1988, but did
not purchase the property on which the business is situated in Marysville until during
the parties’ second marriage. Both parties’ names are on the deed to the business
property in Marysville. The record established that although the business was
started by Gregory, it later became a marital asset as a result of the actions taken
by the parties. -3-
{¶ 4} On July 25, 2013, Donna filed a complaint for divorce. On September
23, 2013, Gregory filed his answer and counterclaim. Thereafter, Donna filed her
answer to Gregory’s counterclaim on September 27, 2013. Both parties hired
appraisers in order to valuate the marital assets for distribution, specifically the
muffler business. Gregory hired Heather Deskins, d/b/a P.D. Eye Forensics, to
appraise the business. Deskins testified that she calculated the value of the
business to be $0.00 (zero dollars). Donna hired an individual named Bill Ditty to
appraise the business. Ditty testified that he calculated the value of the business
to be approximately $86,000.00.
{¶ 5} We also note that evidence was adduced regarding the parties’ marital
debts, consisting primarily of tax liens levied because Gregory failed to file his
business taxes. From 2002 until 2007, the parties filed their taxes jointly, but the
record establishes that they did not file their federal taxes in 2005 and therefore owe
approximately $19,000.00 for that year. At the time of final hearing, Donna was
employed as a mail carrier for the United States Postal Service and her wages were
being garnished by the federal government for her share of the unpaid taxes from
2005. In 2008, the parties separated, and Gregory separately owes federal taxes
from 2008 until the present. Donna’s wages were also being garnished for the
years of 2008 through 2014 when she refused to file jointly with Gregory.
{¶ 6} Furthermore, evidence was adduced which established that the marital
residence was encumbered by two mortgages. Gregory paid off the first mortgage
in the amount of $60,203.53 between the years 2008 and 2013. However, at the
time of the final divorce hearing, there was a second mortgage on the marital -4-
property in the amount $73,142.82. It is undisputed that the funds from the second
mortgage were used to purchase the property where Gregory’s muffler business is
currently situated. The evidence also established that there were tax liens on the
marital residence in the amount of approximately $182,000.00 from Gregory’s failure
to pay his income taxes from 2008 until the present. The record establishes that
Gregory made some payments towards the liens while the parties were separated.
It is also important to note that Gregory lived alone in the marital residence from
2010 until the date of the final divorce hearing.
{¶ 7} Evidentiary hearings were held before the trial court on July 10, 2014,
August 4, 2014, and June 23, 2015. As previously stated, on September 20, 2016,
the trial court issued the parties’ final judgment and decree of divorce in which it
ordered that the parties’ marital residence be sold, and the profits from the sale to
first be used to pay for the parties’ second mortgage and tax liens, with any
remaining amount to be distributed equally between Gregory and Donna. Donna
was awarded the 5.708 acre lot located next to the parties’ former marital residence.
Donna was also awarded her retirement pension free and clear of any claim of
Gregory. Gregory was awarded the muffler business, as well as the building and
real property upon which the business is located. The remaining marital property
was divided equitably amongst the parties. We note that neither party requested
nor received any spousal support award.
{¶ 8} It is from this judgment that Gregory now appeals.
{¶ 9} Gregory’s first assignment of error is as follows:
{¶ 10} “THE TRIAL COURT ERRED TO FIND THAT THE APPELLEE’S -5-
EXPERT WITNESS WAS MORE CREDIBLE THAN THE APPELLANT’S.”
{¶ 11} In his first assignment of error, Gregory contends that Deskins
provided a more credible appraisal regarding the value of his muffler business than
the appraisal provided by Ditty, Donna’s appraiser. Specifically, Gregory argues
that the trial court gave undue weight to Ditty’s appraisal. Gregory also asserts that
Ditty was not qualified to appraise the value of the muffler business.
{¶ 12} “In reviewing the trial court's judgment, it is well established that every
reasonable presumption must be made in favor of the judgment and findings of
fact.” Shemo v. Mayfield Hts., 88 Ohio St.3d 7, 10, 722 N.E.2d 1018 (2000). An
appellate court must give deference to a trial court's findings because the trial court
is “best able to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984). Any issues relating to witness credibility and/or the weight to be given to
their testimony is the function of the trier of fact. Bechtol v. Bechtol, 49 Ohio St.3d
21, 23, 550 N.E.2d 178
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Hawkins v. Hawkins, 2017-Ohio-4201.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
DONNA HAWKINS : : Plaintiff-Appellee : C.A. CASE NO. 2016-CA-26 : v. : T.C. NO. 2013-DR-190 : GREGORY D. HAWKINS : (Civil Appeal from Common Pleas : Court, Division of Domestic Relations) Defendant-Appellant : :
...........
OPINION
Rendered on the 9th day of June, 2017.
RONALD C. TOMPKINS, Atty. Reg. No. 0030007, 121 S. Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
JOHN C.A. JUERGENS, Atty. Reg. No. 0037120, 1504 N. Limestone Street, Springfield, Ohio 45503 Attorney for Defendant-Appellant
.............
DONOVAN, J. -2-
{¶ 1} Defendant-appellant Gregory D. Hawkins appeals from a decision of the
Champaign County Court of Common Pleas, Domestic Relations Division, granting
him and plaintiff-appellee Donna Hawkins “Judgment Order and Decree of Divorce”
on September 20, 2016. Gregory filed a timely notice of appeal with this Court on
October 20, 2016.
{¶ 2} Gregory and Donna were originally married in 1976, but divorced four
years later in 1980. Although they were divorced, the parties continued to
cohabitate with one another for the next twenty-two years. In 2002, the parties
remarried in Las Vegas, Nevada. We note that two children were born as a result
of the parties’ union, but both children were emancipated at the time that the instant
litigation occurred.
{¶ 3} The parties are owners of real property located at the following
addresses: 2529 St. Rt. 245, Cable, Ohio (the marital residence), and a 5.708 acre
lot located next to the marital residence. The parties purchased the properties in
1995 and 1998, respectively, prior to their remarriage in 2002. Also at issue was
Gregory’s business, Pro-Rite Mufflers, located at 396 E. 9th Street in Marysville,
Ohio. The evidence established that Gregory opened his business in 1988, but did
not purchase the property on which the business is situated in Marysville until during
the parties’ second marriage. Both parties’ names are on the deed to the business
property in Marysville. The record established that although the business was
started by Gregory, it later became a marital asset as a result of the actions taken
by the parties. -3-
{¶ 4} On July 25, 2013, Donna filed a complaint for divorce. On September
23, 2013, Gregory filed his answer and counterclaim. Thereafter, Donna filed her
answer to Gregory’s counterclaim on September 27, 2013. Both parties hired
appraisers in order to valuate the marital assets for distribution, specifically the
muffler business. Gregory hired Heather Deskins, d/b/a P.D. Eye Forensics, to
appraise the business. Deskins testified that she calculated the value of the
business to be $0.00 (zero dollars). Donna hired an individual named Bill Ditty to
appraise the business. Ditty testified that he calculated the value of the business
to be approximately $86,000.00.
{¶ 5} We also note that evidence was adduced regarding the parties’ marital
debts, consisting primarily of tax liens levied because Gregory failed to file his
business taxes. From 2002 until 2007, the parties filed their taxes jointly, but the
record establishes that they did not file their federal taxes in 2005 and therefore owe
approximately $19,000.00 for that year. At the time of final hearing, Donna was
employed as a mail carrier for the United States Postal Service and her wages were
being garnished by the federal government for her share of the unpaid taxes from
2005. In 2008, the parties separated, and Gregory separately owes federal taxes
from 2008 until the present. Donna’s wages were also being garnished for the
years of 2008 through 2014 when she refused to file jointly with Gregory.
{¶ 6} Furthermore, evidence was adduced which established that the marital
residence was encumbered by two mortgages. Gregory paid off the first mortgage
in the amount of $60,203.53 between the years 2008 and 2013. However, at the
time of the final divorce hearing, there was a second mortgage on the marital -4-
property in the amount $73,142.82. It is undisputed that the funds from the second
mortgage were used to purchase the property where Gregory’s muffler business is
currently situated. The evidence also established that there were tax liens on the
marital residence in the amount of approximately $182,000.00 from Gregory’s failure
to pay his income taxes from 2008 until the present. The record establishes that
Gregory made some payments towards the liens while the parties were separated.
It is also important to note that Gregory lived alone in the marital residence from
2010 until the date of the final divorce hearing.
{¶ 7} Evidentiary hearings were held before the trial court on July 10, 2014,
August 4, 2014, and June 23, 2015. As previously stated, on September 20, 2016,
the trial court issued the parties’ final judgment and decree of divorce in which it
ordered that the parties’ marital residence be sold, and the profits from the sale to
first be used to pay for the parties’ second mortgage and tax liens, with any
remaining amount to be distributed equally between Gregory and Donna. Donna
was awarded the 5.708 acre lot located next to the parties’ former marital residence.
Donna was also awarded her retirement pension free and clear of any claim of
Gregory. Gregory was awarded the muffler business, as well as the building and
real property upon which the business is located. The remaining marital property
was divided equitably amongst the parties. We note that neither party requested
nor received any spousal support award.
{¶ 8} It is from this judgment that Gregory now appeals.
{¶ 9} Gregory’s first assignment of error is as follows:
{¶ 10} “THE TRIAL COURT ERRED TO FIND THAT THE APPELLEE’S -5-
EXPERT WITNESS WAS MORE CREDIBLE THAN THE APPELLANT’S.”
{¶ 11} In his first assignment of error, Gregory contends that Deskins
provided a more credible appraisal regarding the value of his muffler business than
the appraisal provided by Ditty, Donna’s appraiser. Specifically, Gregory argues
that the trial court gave undue weight to Ditty’s appraisal. Gregory also asserts that
Ditty was not qualified to appraise the value of the muffler business.
{¶ 12} “In reviewing the trial court's judgment, it is well established that every
reasonable presumption must be made in favor of the judgment and findings of
fact.” Shemo v. Mayfield Hts., 88 Ohio St.3d 7, 10, 722 N.E.2d 1018 (2000). An
appellate court must give deference to a trial court's findings because the trial court
is “best able to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984). Any issues relating to witness credibility and/or the weight to be given to
their testimony is the function of the trier of fact. Bechtol v. Bechtol, 49 Ohio St.3d
21, 23, 550 N.E.2d 178 (1990); Seasons Coal at 80, 461 N.E.2d 1273. Thus, a
judgment which is supported by competent, credible evidence will not be reversed
on appeal. C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d
578 (1978).
{¶ 13} Because of its discretion, “[a] trial court has some latitude in the means
it uses to determine the value of a marital asset.” Kevdzija v. Kevdzija, 166 Ohio
App.3d 276, 850 N.E.2d 734, 2006-Ohio-1723, ¶ 23 (8th Dist.). “When valuing a
marital asset, a trial court is neither required to use a particular valuation method nor -6-
precluded from using any method.” James v. James, 101 Ohio App.3d 668, 661, 656
N.E.2d 399 (2d Dist.1995).
{¶ 14} During the course of the trial, both Gregory and Donna introduced
testimony from experts regarding the valuation of the muffler business. Each expert
also offered a report of his or her findings, which contained criticisms of the other
expert’s appraisal. Gregory's expert, Deskins, based her appraisal on the “income
and asset” valuation method. According to Deskins, the muffler business was worth
$0.00 under the “income and asset” approach. In her valuation, Deskins imputed a
yearly income to Gregory as CEO of the business in the amount of $70,000.00 per
year. Deskins also factored the cost of the mortgage on the building where the
muffler business was located into her analysis.
{¶ 15} Conversely, Donna's expert, Ditty, made his valuation based on a
normalized profit approach. Under the profit approach, Ditty testified the business
is worth $86,000.00. Ditty also imputed a yearly income to Gregory as CEO of the
business in the amount of $46,000.00 per year. Ditty testified that he did not factor
the cost of the building where the muffler business was located into his analysis
because the building was not owned by the company. Rather, the records
established that the building was jointly owned by both Gregory and Donna. On
that basis, Ditty testified that he did not believe the monthly mortgage cost should
factor into the overall valuation of the business because the building was marital
property.
{¶ 16} Initially, we note that both Deskins and Ditty were qualified as experts
in the field of business valuation. Each appraiser testified extensively regarding the -7-
method they utilized in order to provide a valuation for Gregory’s muffler business.
More importantly, however, there is no indication in the final judgment and decree of
divorce that the trial court gave undue weight to the appraisal provided by Ditty. It
is clear, however, that the trial court did not believe that Gregory’s muffler business,
from which he had clearly been profiting in the years since the parties had separated,
was, according to his expert, worth nothing. The evidence established that the
muffler business was marital property from which Gregory had been receiving at
least $46,000.00 per year in compensation according to Ditty. Significantly,
between 2008 and the date of the final hearing in 2014, the parties had been
separated, and Donna had not been receiving any compensation or profits from the
business in which she had an ownership interest.
{¶ 17} Nevertheless, in an effort to equalize distribution of the marital
property, Gregory was awarded the muffler business (building and land included)
free and clear of any claim of Donna. In addition to his salary from the muffler
business of (at least) $46,000.00, the tractor worth $20,000.00, and a lawn mower
worth $1,000.00, Gregory received approximately $67,000.00 as a result of the
divorce, even accepting Deskins’ business appraisal of $0.00. Donna received
approximately $66,000.00 as a result of the divorce, including an additional
$30,000.00 she received as a result of Gregory paying off the first mortgage on the
marital residence between 2008 and 2014 in the amount of $60,000.00. Upon
review, we find that the record establishes that the trial court did not give undue
weight to the business appraisal of Donna’s expert, Ditty, over that of Deskins,
Gregory’s expert. In fact, it actually inured to the benefit of Gregory that the trial -8-
court relied on Ditty’s estimation of his yearly salary at $46,000.00, rather than
Deskins’ estimation of $70,000.00, in order to equalize distribution of the marital
assets.
{¶ 18} Gregory’s first assignment of error is overruled.
{¶ 19} Because they are interrelated, Gregory’s second and third
assignments of error will be discussed together as follows:
{¶ 20} “THE TRIAL COURT ERRED TO MAKE AN INEQUITABLE,
UNEQUAL DISTRIBUTION OF THE PARTIES['] PROPERTY WHEN IT FAILED TO
VALUE THE PARTIES’ REAL AND PERSONAL PROPERTY IN RESPECT TO
THEIR DEBT RATIO.”
{¶ 21} “THE TRIAL COURT ERRED WHEN IT FAILED TO CREDIT THE
APPELLANT THE FIRST MORTGAGE PAYOFF AMOUNT AND THEN ORDERED
THE SALE OF THE MARITAL PROPERTY SITUATED AT 2529 STATE ROUTE
245, IN CABLE, OHIO.”
{¶ 22} In his second assignment, Gregory argues that the trial court made an
inequitable distribution of marital property in light of the expert testimony of Deskins
regarding the parties’ debt ratio. In his third assignment, Gregory argues that the
trial court erred when it ordered the sale of the marital residence after he had paid
off the first mortgage on the property.
{¶ 23} R.C. 3105.171(B) requires that marital property be divided equitably,
and an equal division is presumed to be equitable. “If an equal division of marital
property would be inequitable, the court shall not divide the marital property equally
but instead shall divide it between the spouses in the manner the court determines -9-
equitable.” R.C. 3105.171(C)(1). “Equality” is the “starting point” for dividing any
marital assets and debts; however, the court may divide the marital assets and debt
in some other fashion if it finds that an equal division would be inequitable. Kraft v.
Kraft, 2d Dist. Montgomery No. 25982, 2014–Ohio–4852, ¶ 62, citing Arnett v.
Arnett, 2d Dist. Montgomery No. 20332, 2004–Ohio–5274, ¶ 8; see also Neville v.
Neville, 99 Ohio St.3d 275, 2003–Ohio–3624, 791 N.E.2d 434, ¶ 5. In order to
determine what is equitable, a trial court must consider the factors set forth in R.C.
3105.171(F).
{¶ 24} Because a trial court must consider the assets and liabilities of both
parties, dividing marital property requires the trial court to also divide marital debt.
See R.C. 3105.171(F)(2). Moreover, a reviewing court should not review discrete
aspects of the property division out of the context of the entire award, but should
consider the distribution within the context of the entire award. James, 101 Ohio
App.3d 668, 680, 656 N.E.2d 399 (2d Dist.1995).
{¶ 25} The trial court has broad discretion to divide property in domestic
relations cases, and its decision will not be disturbed on appeal absent
unreasonable, arbitrary, or unconscionable conduct. Middendorf v. Middendorf, 82
Ohio St.3d 397, 401, 696 N.E.2d 575 (1998) (citations omitted); Majeski v.
Majeski, 2d Dist. Montgomery No. 24668, 2012–Ohio–731, ¶ 11. “If there is some
competent, credible evidence to support the trial court's decision, there is no abuse
of discretion.” Middendorf at 401. The question before this court is not whether the
trial court's division of marital assets was the only way or even the best way to divide
the parties' assets; rather, we must determine whether the division was inequitable -10-
as a matter of law or whether the specific method of division chosen by the trial court
demonstrated an abuse of discretion.
{¶ 26} It is undisputed that the entire debt load of the parties consisted of tax
liens on earnings from Gregory’s muffler business and the second mortgage on the
martial residence. Specifically, the tax liens (2005, 2008-2014) totaled
$100,500.00. The second mortgage totaled $73,142.82. Thus, the parties’ debt
load at the time of the final hearing was $173,642.82. In order to pay off the entire
debt, the trial court ordered the sale of the marital residence, and any sum remaining
is to be split equally between the parties. Simply put, by ordering the sale of the
marital residence, the trial court provided a reasonable solution by which the parties
could pay off all of their tax and mortgage debts, thereby exiting the marriage
relatively unencumbered.
{¶ 27} As her portion of the divorce, Donna received her retirement fund
valued at approximately $6,000.00 (as of 2012), the vacant lot located next to the
marital residence valued at approximately $30,000.00, and personal property valued
at approximately $1,100.00. Gregory contends that Donna effectively received an
additional $30,000.00 when he paid off the first mortgage on the marital residence
between 2008 and 2014 in the amount of $60,000.00.
{¶ 28} For his part of the distribution, Gregory received the muffler business
appraised at somewhere between $0.00 and $86,000.00, a tractor worth
approximately $20,000.00, and a lawn mower worth approximately $1,000.00.
Gregory argues that since his business has no value (based upon Deskins’
appraisal), he only received $21,000.00 in the distribution while Donna received -11-
approximately $66,000.00. Gregory therefore asserts that the trial court’s
distribution of the marital property was clearly inequitable.
{¶ 29} Gregory, however, fails to take into account that even if the muffler
business is worth nothing, Ditty testified that he has been receiving at least
$46,000.00 per year in compensation from his management of said business. The
evidence further established that the muffler business was marital property.
Between 2008 and the date of the final hearing in 2014, the parties had been
separated, and Donna had not been receiving any compensation or profits from the
business in which she had an ownership interest. In addition to his salary from the
muffler business of $46,000.00, the tractor worth $20,000.00, and a lawn mower
worth $1,000.00, Gregory received approximately $67,000.00 as a result of the
divorce, even accepting Deskins’ business appraisal of $0.00. Donna received
approximately $66,000.00 as a result of the divorce, including the $30,000.00 she
received as a result of Gregory paying off the first mortgage on the marital residence.
{¶ 30} The trial court's ruling allowed the business to remain intact, and
allowed Gregory to maintain his business as he had been operating it, while giving
Donna financial credit for her marital share of the property, as well as the first
mortgage paid off solely by Gregory. We also note that neither party requested nor
was awarded spousal support. The trial court’s equitable distribution of marital
property therefore allowed the parties to leave the marriage on even footing.
Accordingly, we find that the trial court did not abuse its discretion in distributing the
parties' assets as it did.
{¶ 31} Gregory’s second and third assignments of error are overruled. -12-
{¶ 32} All three of Gregory’s assignments of error having been overruled, the
judgment of the trial court is affirmed.
FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
Ronald C. Tompkins John C.A. Juergens Hon. Lori L. Reisinger