[Cite as Horak v. Horak, 2018-Ohio-3659.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
JASON HORAK C.A. No. 28731
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE SARAH DECKER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. DR-2012-11-3425
DECISION AND JOURNAL ENTRY
Dated: September 12, 2018
CARR, Judge.
{¶1} Plaintiff-Appellant Jason Horak (“Husband”) appeals from the decision of the
Summit County Court of Common Pleas, Domestic Relations Division. We affirm in part, and
reverse in part.
I.
{¶2} Husband married Defendant-Appellee Sarah Horak, nka Decker (“Wife”), on July
15, 2006. The parties have two children together. Husband filed a complaint for divorce in
November 2012, and Wife answered and filed a counterclaim. A temporary order was issued in
March 2013; no spousal or child support was ordered. However, Wife was ordered to make
monthly payments on the leased Cadillac that she drove and to escrow the remaining $2,000 of
the 2012 tax refund.
{¶3} Subsequently, Wife moved to set aside the order and the trial court granted the
motion in part. In the entry, the trial court noted that Husband had failed to comply with all 2
discovery requests and thus Husband’s net income from his automobile restoration business
could not be determined. The trial court imputed $78,000 in income to Husband, based upon
what he earned at his former job. Husband was ordered to pay $886.50 in child support when
health insurance was provided and $875 in spousal support per month.
{¶4} At the time of the final hearing, the parties had come to an agreement concerning
the custody of the children: Wife was designated the residential parent and legal custodian and
Husband was to have parenting time with the children. Following the hearing, the magistrate
issued a decision, which was incorporated into the divorce decree that the trial court issued the
same day. That decision awarded Wife child support but not spousal support.
{¶5} Husband filed objections and supplemented the objections after the transcript of
the final hearing was filed. The trial court overruled the objections. Husband attempted to
appeal the divorce decree on two separate occasions; however, this Court determined the entries
were not final, appealable orders. The trial court issued another judgment entry in July 2017.
Husband has again appealed, raising eight assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT MADE FINDINGS THAT APPELLANT WAS VOLUNTARILY UNDEREMPLOYED FOR THE PURPOSES OF ESTABLISHING CHILD AND SPOUSAL SUPPORT. THE COURT’S DETERMINATION OF UNDEREMPLOYMENT WAS NOT SUPPORTED BY THE SUFFICIENCY OR WEIGHT OF THE EVIDENCE PRESENTED AT THE TRIAL CONDUCTED IN THIS MATTER.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPUTING INCOME OF $75,000.00 PER YEAR TO PLAINTIFF FOR THE PURPOSES OF COMPUTATION OF CHILD SUPPORT AND SPOUSAL SUPPORT. THE AFORESAID FIGURE IS NOT SUPPORTED BY THE SUFFICIENCY OR 3
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AND THE COURT HAD NO BASIS TO ADOPT SUCH AN IMPUTED FIGURE.
{¶6} Husband argues in his first assignment of error that the trial court erred in finding
Husband was voluntarily underemployed. Husband argues in his second assignment of error that
the trial court abused its discretion in imputing him with an income of $75,000 for purposes of
child support based upon that underemployment.
{¶7} First, to the extent Husband challenges the trial court’s imputation of income for
purposes of spousal support, we note that the trial court in the final decree did not award Wife
any spousal support. Thus, to this extent, Husband’s arguments are without merit.
{¶8} “[W]e generally review a trial court’s action on a magistrate’s decision for an
abuse of discretion, but do so with reference to the nature of the underlying matter.” (Internal
quotations and citations omitted.) Harrison v. Lewis, 9th Dist. Summit No. 28114, 2017-Ohio-
275, ¶ 40. “In determining the appropriate level of child support, a trial court must calculate the
gross income of the parents.” Stahl v. Stahl, 9th Dist. Summit No. 27876, 2017-Ohio-4170, ¶ 19,
quoting Bajzer v. Bajzer, 9th Dist. Summit No. 25635, 2012-Ohio-252, ¶ 11. R.C. 3119.01(C)(5)
defines “[i]ncome” as used in Chapter 3119 as: “(a) For a parent who is employed to full
capacity, the gross income of the parent; (b) For a parent who is unemployed or underemployed,
the sum of the gross income of the parent and any potential income of the parent.”
“Potential income” means both of the following for a parent who the court pursuant to a court support order, or a child support enforcement agency pursuant to an administrative child support order, determines is voluntarily unemployed or voluntarily underemployed:
(a) Imputed income that the court or agency determines the parent would have earned if fully employed as determined from the following criteria:
(i) The parent’s prior employment experience;
(ii) The parent’s education; 4
(iii) The parent’s physical and mental disabilities, if any;
(iv) The availability of employment in the geographic area in which the parent resides;
(v) The prevailing wage and salary levels in the geographic area in which the parent resides;
(vi) The parent’s special skills and training;
(vii) Whether there is evidence that the parent has the ability to earn the imputed income;
(viii) The age and special needs of the child for whom child support is being calculated under this section;
(ix) The parent’s increased earning capacity because of experience;
(x) The parent’s decreased earning capacity because of a felony conviction;
(xi) Any other relevant factor.
(b) Imputed income from any nonincome-producing assets of a parent, as determined from the local passbook savings rate or another appropriate rate as determined by the court or agency, not to exceed the rate of interest specified in division (A) of section 1343.03 of the Revised Code, if the income is significant.
R.C. 3119.01(C)(11). “[T]he trial court cannot impute income to either party without first
making a finding that the party is voluntarily unemployed or underemployed.” (Internal
quotations and citations omitted.) Collins v. Collins, 9th Dist. Wayne No. 10CA0004, 2011-
Ohio-2087, ¶ 27. “The burden of proof is on the parent who is claiming that the other is
voluntarily unemployed or underemployed.” Stahl at ¶ 19.
{¶9} “This Court reviews a trial court’s factual finding that a parent is voluntarily
unemployed to determine if it was against the manifest weight of the evidence.” Id., citing Kent
v. Kent, 9th Dist. Summit No. 25231, 2010-Ohio-6428, ¶ 10-12. “The amount of potential
income the court imputes once it finds voluntary unemployment, however, is a discretionary 5
determination that this Court will not disturb on appeal absent an abuse of discretion.” Stahl at ¶
19, citing Rock v. Cabral, 67 Ohio St.3d 108 (1993), syllabus.
{¶10} While Wife’s income was undisputed at trial, Husband’s income was highly
contested. The parties filed joint tax returns in 2009, 2010, and 2011. The parties filed separate
tax returns in 2012 and 2013. During all relevant periods, Wife worked for a law office. In
2013, the trial court found that Wife earned $37,067.95. From 2009 through part of 2011,
Husband worked for Frankie & Dylan’s, which is a business that does automotive repair work
including collision and some custom restoration work. Husband did a variety of tasks for
Frankie & Dylan’s including office work and work in the shop. In addition, he would do
research in the evenings and chat with people on the computer to bring in work. In 2010, taking
into account the parties’ total gross income and Wife’s W-2 income, Husband earned a little over
$75,000. In 2011, Husband earned approximately $41,000; however, according to Wife,
Husband left Frankie & Dylan’s midway through the year. At the time, Husband was making
$1,500 a week, which would equate with $78,000 a year. Husband testified that he made $16.00
per hour, and thus, to make $1500 a week, he had to work about 94 to 96 hours. However, there
was also testimony that the hours required were “billable hours[.]” Specifically, Husband
testified that in order “to stay on that pay[, he would have] to get enough * * * billable hours,
labor in the shop on metal work[.]” Husband boasted in his testimony about how he could
complete most tasks faster than other people in the shop and so he had time to do additional
tasks. Wife also did not believe Husband worked 94 hours a week. It is unclear from the record
how many actual hours Husband had to work to accumulate the required billable hours, but there
was testimony that Husband worked at the shop during the day and was on the computer at night. 6
{¶11} Husband left Frankie & Dylan’s to start his own business, Horak’s Restoration &
Custom Auto Body. That business opened in March or April 2012. In support of a loan for that
business, Husband submitted a document, which Wife typed, which discussed Husband’s
extensive experience restoring cars and also indicated that restoration work had been steady
irrespective of the situation with the economy and that the economy had not impacted the
restoration portion of the business. Those documents made it appear that Husband believed he
could do better with his own business.
{¶12} Nonetheless, Husband testified that part of the reason he left Frankie & Dylan’s to
start his own business was that the market had crashed and there was not the same amount of
work. In addition, Husband indicated that Wife wanted to leave the law office as she found it
stressful. Thus, it was hoped that Wife could run the office of the new business and have more
time with the children. Further, Husband hoped that the new business would get to a point where
he could just run it and have surgery on his back. Husband suffered a back injury in 2004, and
testified to having herniated discs, crushed vertebrae, and floating pieces of bone in his back.
Husband receives chiropractic care and takes Motrin for the pain. At Frankie & Dylan’s, other
employees would help Husband with any heavy work or lifting, and at his own business,
Husband had an employee to help him. Wife acknowledged that Husband had back pain, but
there was no testimony that Husband’s condition prevented him from working full time or that
he had ever applied for disability benefits.
{¶13} Husband asserted that Wife supported his decision and helped file the paperwork
to incorporate the business. Wife agreed that she helped type up the paperwork but testified that
she told Husband not to quit Frankie & Dylan’s because he made a lot of money working there. 7
Wife testified that Husband left Frankie & Dylan’s because Husband did not get along with the
owner’s wife and they argued.
{¶14} Husband’s 2012 tax return reflected that his gross receipts from his business
amounted to $118,448, but after taking into account his costs and expenses, his net profit was
under $6,000. In 2013, Husband had gross receipts or sales of $74,170 but ultimately reported a
loss of $21,339.
{¶15} Ultimately, the magistrate found Husband voluntarily underemployed and
imputed an income of $75,000 to him. The magistrate found Husband to be highly skilled in
auto body work but lacking in business skills. The magistrate also found Husband to be in
generally good health. The magistrate acknowledged that Husband had a back problem that
continued to cause him pain, but also concluded that the problem did not prevent him from
working full time. The trial court adopted the magistrate’s decision and incorporated it into its
own.
{¶16} Husband objected to the magistrate’s finding of voluntary underemployment, the
imputation of $75,000 as income, and the conclusion that he was in good health and did not
suffer from a condition that hindered his ability to work full time. The trial court overruled
Husband’s objections.
{¶17} Husband’s argument on appeal is limited. Husband asserts that he was not
voluntarily underemployed because the decision to leave Frankie & Dylan’s was based upon the
economic conditions and was a mutual decision between Husband and Wife. Additionally, he
notes that the decision to leave that job was not correlated with him filing for divorce as he left
Frankie & Dylan’s in 2011, long before the action was filed. Husband points to no case law that
supports the conclusion that any of the above factors are determinative. See App.R. 16(A)(7). 8
{¶18} Even assuming the factors Husband references are relevant, Husband has not
demonstrated that the trial court’s decision was against the weight of the evidence. The trial
court was presented with evidence that Wife did not want Husband to leave his prior
employment, and it is clear that the trial court believed this testimony. Additionally, in light of
the state of the record, the trial court was not required to believe that Husband’s reasons for
leaving his employment were primarily based on the economic conditions. Husband’s loan
proposal expressed that the restoration portion of the business was not negatively impacted by
the economy. Further, the trial court could have found Husband’s rationale suspicious; if the
business at Frankie & Dylan’s was suffering, the trial court could question why Husband would
seek to start his own business in that climate. Finally, we note that “[f]or purposes of the child
support statute, the term ‘voluntary’ means done by design or intention, intentional, proposed,
intended, or not accidental. Intentionally and without coercion.” (Internal quotations and
citations omitted.) Hahn v. Hahn, 9th Dist. Medina No. 11CA0064-M, 2012-Ohio-2001, ¶32. In
fact, “[t]he parent’s subjective motivations for being voluntarily unemployed or underemployed
play no part in the determination whether potential income is to be imputed to that parent in
calculating his or her support obligation.” (Emphasis omitted.) Rock, 67 Ohio St.3d at 111. We
have concluded that “[a] parent’s intentional and uncoerced resignation from employment which
results in either no employment or substantially less income in subsequent employment would be
one example of a situation in which a parent is voluntarily unemployed or voluntarily
underemployed.” Collins, 2011-Ohio-2087, at ¶ 27. Given Husband’s limited argument and the
record on appeal, Husband has not demonstrated that his situation does not fit squarely within the
prior example. Accordingly, we cannot say that the trial court’s finding that Husband was
voluntarily underemployed was against the manifest weight of the evidence. 9
{¶19} With respect to the amount of imputed income, Husband’s argument on appeal is
even more limited. Husband acknowledges that the trial court considered the factors in R.C.
3119.1(C)(11). However, Husband asserts that the trial court failed to appropriately consider
Husband’s back problem, the diminishing job prospects in the car restoration industry, and the
fact that Husband’s prior employment required him to work 94 hours per week to make $75,000
per year.
{¶20} We cannot say that the trial court abused its discretion. The trial court was aware
of Husband’s back problems and that he saw a chiropractor and took Motrin for pain. However,
the trial court was also aware that, at his prior place of employment, Husband had help with the
heavy labor and that, despite his pain, Husband nonetheless worked full time, never filed for
disability, and was able to make over $75,000 per year.
{¶21} To the extent Husband argues that his business prospects were deteriorating at
Frankie & Dylan’s, we note that we have discussed this issue above. The trial court could have
reasonably disbelieved that Husband would start a new business in an industry if Husband
actually believed that industry was dramatically declining. To the extent Husband argues that he
only made $75,000 by working 94 hours per week, we note there was evidence that Husband’s
salary was based on billable hours, which were correlated with time in the shop. There was also
testimony that Husband was faster and more efficient than the other employees. Considering the
totality of the evidence, the trial court could reasonably infer that Husband was not in fact
actually working 94 hours.
{¶22} In ruling on Husband’s objections, the trial court considered the statutory factors
that it believed were applicable in light of the evidence presented. The trial court had before it
evidence that Husband was highly skilled in automotive work, that Husband was capable of 10
working full time, and that Husband had made upwards of $75,000 per year at his prior job. See
R.C. 3119.01(C)(11)(a)(i),(iii), (vi), and (vii). In light of Husband’s limited argument on appeal,
we cannot say that the trial court abused its discretion in imputing an income of $75,000 per year
to Husband for purposes of calculating child support.
{¶23} Husband’s first and second assignments of error are overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN REFUSING TO CREDIT APPELLANT FOR CERTAIN FUNDS RETAINED AND/OR SPENT BY APPELLEE IN CONTRADICTION AND VIOLATION OF VARIOUS INTERIM ORDERS OF THE COURT. SPECIFICALLY, APPELLEE’S TAKING AND CONVERTING THE 2013 TAX RETURN REFUND IN THE AMOUNT OF $4,298.00 AND THE 2012 TAX RETURN IN THE AMOUNT OF $4,000.00.
{¶24} Husband’s argument in his third assignment of error focuses on the distribution of
the parties’ 2012 and 2013 tax refunds.
{¶25} “A domestic relations court enjoys broad discretion in making an equitable
distribution of the parties’ assets and liabilities.” (Internal quotations and citations omitted.)
McGrew v. McGrew, 9th Dist. Summit No. 28310, 2017-Ohio-7854, ¶ 14.
{¶26} In the temporary order, Wife was ordered to escrow the remainder of the 2012 tax
refund, which amounted to $2000 of the approximately $4000 refund. At trial, Wife
acknowledged that she had not done so. Wife averred that she could not escrow the money; she
indicated that she needed the money for a down payment for her apartment and for items for the
apartment. Wife also acknowledged that she had spent a portion of the 2013 tax refund on an
appraisal needed for trial and her daughter’s preschool. The remainder of the 2013 refund was in
her account. At that time, Husband was in arrears on his child and spousal support payments by
a significant amount and there was evidence that, because of that, Wife could not afford all of
her expenses. 11
{¶27} In the magistrate’s decision, and the trial court order adopting it, the court
awarded Wife the remaining $2000 of the 2012 tax refund as part of the property division. In
doing so, the court listed it in the property division spreadsheet and appears to have considered
that amount in calculating the amount Husband owed Wife in order to achieve an equitable
property division.
{¶28} The 2013 refund was not mentioned in the magistrate’s decision or the trial court
order adopting the magistrate’s decision. In his objections to the magistrate’s decision, Husband
argued that Wife should have been held in contempt for failing to escrow the 2012 refund and
that he should have received half of the 2013 refund as part of the property division. The trial
court overruled his objections but also awarded Wife the full amount of 2013 refund. On appeal,
Husband now argues that the trial court should have given him credit for half of both refunds by
crediting his spousal and child support arrearages. Husband has not argued that he was entitled
to receive any portion of the refunds.
{¶29} In Husband’s objections, Husband never asked that half of the amount of the two
refunds be credited against his spousal and child support arrearages. In fact, Husband did not
challenge the disposition of the 2012 refund in his objections; he only asked that Wife be held in
contempt for failing to escrow that money. “An objection to a magistrate’s decision shall be
specific and state with particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii). “Except
for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any
factual finding or legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or
conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv). Accordingly, as
Husband did not challenge the magistrate’s disposition of the 2012 refund via objections, he has 12
forfeited that argument. See Civ.R. 53(D)(3)(b)(iv). Further, Husband has not argued plain error
on appeal, and we decline to create an argument for him. See Adams v. Adams, 9th Dist. Wayne
No. 13CA0022, 2014-Ohio-1327, ¶ 6; see also Phillips v. Hostetler, 9th Dist. Summit No.
28397, 2017-Ohio-2834, ¶ 17.
{¶30} With respect to the 2013 refund, the magistrate did not account for it in the
magistrate’s decision. Thus, the trial court, in ruling on the objections, was the first to address
the 2013 refund, which it deemed marital property. In so doing, the trial court awarded the full
amount of the 2013 tax refund to Wife but did not include it on the property division spreadsheet,
nor does it appear that the trial court considered that amount in determining the amount Husband
owed Wife in order to achieve an equitable property division. See R.C. 3105.171; See
Schiesswohl v. Schiesswohl, 9th Dist. Summit No. 21629, 2004-Ohio-1615, ¶ 38 (discussing a
marital tax refund as marital property). While Husband argues that the trial court was required to
credit his child and spousal support arrearage with half of the 2013 refund, Husband has pointed
to no law requiring the same. See App.R. 16(A)(7). Nonetheless, because the trial court failed to
include the 2013 tax refund in the property division spreadsheet, and, thus, it appears it also
failed to consider that amount when it calculated the amount Husband owed Wife to achieve an
equitable distribution of the property, we agree the trial court erred.
{¶31} Husband’s third assignment of error is sustained only to the extent detailed above.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN ORDERING THE DEFICIENCY ON THE LEASED CADILLAC TO BE APPORTIONED ON AN EQUAL BASIS BETWEEN THE PARTIES AND/OR FOR THE FAILURE TO PROVIDE AN APPROPRIATE CREDIT TO APPELLANT FOR HIS SHARE OF THE DEFICIENCY. THE TRIAL COURT ERRED IN NOT MAKING DEFENDANT EXCLUSIVELY RESPONSIBLE FOR ANY DEFICIENCY. 13
{¶32} Husband argues in his fourth assignment of error that the trial court erred in
failing to make Wife exclusively responsible for any deficiency on the leased Cadillac.
{¶33} The Cadillac was leased in Husband’s name, but the vehicle was leased for Wife
to drive. In the temporary order, Wife was ordered to pay the car payment on the Cadillac. Wife
initially did so, but eventually became unable to make the payments. Wife maintained that she
was unable to continue making payments due to Husband’s failure to remain current in his child
and spousal support payments. There is no dispute that Husband was significantly behind in his
child and spousal support payments. Thereafter, Wife began to drive someone else’s car as that
person did not need the vehicle.
{¶34} As of November 10, 2013, $638.00 was past due on the car. Around that time,
when Wife was behind two or three months in payments, she left the car at the end of Husband’s
parents’ driveway. At that point, Wife asserted the mileage was around 31,000 miles and 34,000
or 36,000 miles were allowed under the entire lease term, which Wife believed went until March
or April of 2014. Husband believed the mileage was higher when Wife dropped off the car.
Husband testified to certain damage to the vehicle and the corresponding repairs that would be
needed for the car. Wife acknowledged there was a scratch on the fender from a bicycle.
{¶35} After Wife dropped off the vehicle, Husband allowed a friend to use it. That
friend made payments on the car and paid for some repairs. Sometime in 2014, Husband
returned the car to the dealership. At that point, the payments on the car were not current, but
Husband was unsure what would be owed on the car as Husband was waiting for the lender bank
to pick up the car from the dealership.
{¶36} Prior to trial, Husband filed a motion seeking to hold Wife in contempt for failing
to make the payments on the Cadillac as ordered. The magistrate in its decision did not 14
specifically address the motion for contempt; instead, it ordered Husband and Wife to each pay
half of any deficiency on the Cadillac. The magistrate also ordered Husband to be solely
responsible for the outstanding debt on the vehicle that he drove, which he was awarded under
the property division. Husband objected to the magistrate’s decision arguing that Wife should
have been found in contempt for failing to make payments on the Cadillac, for damaging the car,
and for exceeding the mileage. Additionally, Husband argued that Wife should be solely
responsible for any deficiency.
{¶37} The trial court overruled Husband’s objection, concluding that Wife’s failure to
make the payments was caused by Husband’s failure to comply with his support obligations.
Thus, the trial court found that a contempt finding was not warranted. Additionally, the trial
court concluded that it was appropriate for Husband to pay half of any deficiency.
{¶38} After considering the record, and the trial court’s and magistrate’s entries, we
conclude that the trial court did not act unreasonably in holding Husband responsible for half of
any deficiency on the Cadillac. See Polacheck v. Polacheck, 9th Dist. Summit Nos. 26551,
26552, 2013-Ohio-5788, ¶ 7 (“As with the division of marital property, the equitable division of
marital debt is a matter subject to the exercise of the trial court's discretion.”). The trial court
could have reasonably found Wife’s testimony credible, and thereby determined that Husband’s
failure to fulfill his support obligations was the cause of Wife’s failure to timely make payments
on the Cadillac. Further, in light of the fact that the vehicle was returned to the dealership, the
trial court could have also considered that neither party was receiving any value from the vehicle
in evaluating how to apportion the debt. Accordingly, it was not an abuse of discretion for the
trial court to hold Husband responsible for a portion of the deficiency.
{¶39} Husband’s fourth assignment of error is overruled. 15
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED IN FINDING THE ENTIRE VALUE OF THE “ORANGE CUDA” TO BE MARITAL WITHOUT ASCRIBING A PREMARITAL VALUE TO THE VEHICLE AS ESTABLISHED BY THE TESTIMONY PRESENTED.
{¶40} Husband argues in his fifth assignment of error that the trial court erred in finding
the entire value of the orange “cuda” to be marital.
{¶41} We do not reach the merits of this assignment of error as Husband’s objections to
the magistrate’s decision did not include an objection concerning the orange “cuda.1” See Civ.R.
53(D)(3)(b)(iv). Further, Husband has not argued plain error on appeal, and we decline to create
an argument for him. See Adams, 2014-Ohio-1327, at ¶ 6; see also Phillips, 2017-Ohio-2834, at
¶ 17.
{¶42} Husband’s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED IN FINDING THE ENHANCED VALUE OF THE “BLUE CUDA” TO BE ENTIRELY MARITAL IN CHARACTER.
{¶43} Husband argues in his sixth assignment of error that the trial court erred in finding
the enhanced value of the blue “cuda” to be entirely marital in character. Specifically, Husband
challenges the trial court’s $1,200 premarital valuation of the blue cuda, arguing that it instead
was worth $30,000 or $40,000.
{¶44} The value of two cars that Husband purchased prior to the marriage was the
subject of much dispute during the trial. One was an orange 1971 Plymouth Barracuda (the
orange “cuda”), mentioned above, and the second was a blue 1971 Plymouth Barracuda (the blue
1 Husband’s objection pertaining to the blue “cuda” mentions the orange “cuda” but there is no objection addressing the orange “cuda.” 16
“cuda”). As Husband focuses on the premarital value of the vehicle, we will limit our discussion
accordingly.
{¶45} Husband testified that he purchased the blue vehicle unrestored in 2000 and
between 2000 and 2005, Husband stored the vehicle in his friend’s garage. He purchased it
along with a bunch of parts and assigned a value of $1,200 to the unrestored body of the vehicle
but did not remember what he spent on the parts and vehicle together, although he guessed it
could have been $15,000 to $20,000. The vehicle was not titled to him until 2005 and reflects a
purchase price of $1,200. Husband emphasized that the $1,200 represented only the body of the
vehicle, not any parts. Since 2005, Husband put a motor that was in a Charger that he acquired
before the marriage into the blue vehicle. When asked how much work Husband had done on
the blue car prior to the marriage in 2006, Husband was unable to provide a specific amount or
number, apart from saying that “a lot of work was done.” When Husband was again asked how
much work had been done on the blue vehicle by the time he was married, Husband responded
with: “A lot, but not – to be fair a lot, but not all.” Husband’s counsel then stated, “[n]ot all,
okay. Did – was there—[.]” Husband then interrupted and added, “[t]he hard stuff.” When
asked to put a value on the blue car in 2005, Husband estimated the value at “[p]robably 30
grand[.]” After much back and forth and emphasizing that it was difficult to value the car,
Husband estimated that the blue car was worth $45,000 at the time of the marriage.
{¶46} Husband’s brother testified that when Husband bought the blue car it was a “bare
shell of a car” and Husband restored the car himself. Husband’s brother saw Husband working
on the blue car prior to the marriage but could not say how much work was done when. Wife
testified that when she first saw the blue car it was unrestored and described both cars as being in
“horrible, horrible shape.” Wife testified that the cars did not run at that time but Husband told 17
her they would be worth a lot of money when they were restored. Wife denied seeing Husband
working on the two cars prior to the marriage, but says Husband was working on other cars at
that time. Wife averred that restoration of the two vehicles did not happen until she and Husband
were married and that the vehicles were shells prior to the marriage. She did not know at the
time how much the blue vehicle was worth but Husband indicated he thought it was worth
maybe $40,000.
{¶47} The magistrate concluded that the blue vehicle was worth $1,200 prior to the
marriage and based this on what Husband paid for it. The magistrate noted that “Husband was
unable to trace his investment in the blue Cuda before the date of the marriage, meaning he did
not know how much work was done on it before the marriage.” In addition, the magistrate
pointed out that Husband “had no photographs to show significant work completed before the
marriage.”
{¶48} Husband objected to the magistrate’s findings concerning the blue car and argued
that there was no basis to treat any of the value of the blue vehicle as marital property. Husband
argued that the blue car was worth more at the time of purchase than the value the expert
appraised it for at the time of trial (which was $29,900). In overruling Husband’s objection, the
trial court found that Husband testified that he done a lot of work on the blue vehicle prior to the
marriage but “not all the hard stuff[.]” In addition, the trial court reiterated the magistrate’s
findings that Husband had not traced his investment in the blue car prior to the marriage and thus
only established a separate property interest of $1,200.
{¶49} On appeal, Husband argues that the trial court, in ruling on the objections,
mischaracterized Husband’s testimony pertaining to how much work had been done on the blue
vehicle at the time of the marriage. The trial court viewed Husband’s testimony as being that 18
“the hard stuff” had not been completed at the time of the marriage, whereas Husband believes
his testimony was that “the hard stuff” had been completed at the time of the marriage. In
reviewing the testimony, which we detailed above, we view it as somewhat ambiguous.
{¶50} Nonetheless, irrespective of any mischaracterization of that testimony by the trial
court, we still conclude that the trial court did not abuse its discretion in overruling Husband’s
objection. Husband had a difficult time providing a value for the vehicle at the time of the
marriage as well as detailing when the work on the vehicle was done. His testimony was
somewhat rambling and vague and could be viewed with skepticism. At one point he testified
that it was worth $30,000 in 2005, and at another point he testified that it was worth $45,000 at
the time of the marriage; yet, his reasons for adopting that valuation are unclear. Husband also
acknowledged that all the work was not done at the time of the marriage and could not quantify
how much work was completed. There was testimony that Husband purchased the vehicle as a
shell and that shell itself was valued at $1,200. The record is unclear as to how many of the parts
he purchased at the same time as the vehicle went into the vehicle and what percentage of the
parts used were obtained prior to the marriage. Husband testified that he used a motor from a
Charger he purchased prior to the marriage but points to no place in the record where he placed a
value on that motor, nor can we locate one. We are also aware that Wife denied that Husband
restored the blue car prior to the marriage. It is apparent that the magistrate and trial court did
not find Husband’s valuation credible. Given all of the foregoing circumstances, we cannot say
that the trial court abused its discretion in concluding the premarital value of the vehicle was
$1,200.
{¶51} Husband’s sixth assignment of error is overruled. 19
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED WHEN IT ASCRIBED THE VALUE OF $17,189.42 FOR THE DODGE TRUCK TO APPELLANT’S ALLOCATION OF ASSETS IN PARAGRAPH NO. 17 OF THE ORDERS IN THE JUDGMENT ENTRY AS THE VALUE DOES NOT REFLECT THE ACTUAL EQUITY IN THE MOTOR VEHICLE AFTER DEDUCTION FOR SIGNIFICANT OUTSTANDING INDEBTEDNESS EXISTING AT THE TIME OF THE VALUATION OF THE ASSET.
{¶52} Husband argues in his seventh assignment of error that the trial court erred in
valuing his truck.
{¶53} We do not reach the merits of this assignment of error as Husband’s objections to
the magistrate’s decision did not include an objection concerning the valuation of his truck. See
Civ.R. 53(D)(3)(b)(iv). Further, Husband has not argued plain error on appeal, and we decline to
create an argument for him. See Adams, 2014-Ohio-1327, at ¶ 6; see also Phillips, 2017-Ohio-
2834, at ¶ 17.
{¶54} Husband’s seventh assignment of error is overruled.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT’S JUDGMENT ENTRY IS NOT SUPPORTED BY THE SUFFICIENCY OR MANIFEST WEIGHT OF THE EVIDENCE AND IS AN ABUSE OF DISCRETION AS IT RELATES TO THE DETERMINATION THAT PLAINTIFF WAS VOLUNTARILY UNDEREMPLOYED. THE JUDGMENT OF THE TRIAL COURT IS NOT SUPPORTED BY THE EVIDENCE.
{¶55} In Husband’s eighth assignment of error, Husband attempts to incorporate his
prior assignments of error and broadly and in a conclusory fashion asserts the trial court erred.
See App.R. 16(A)(7). As this Court has already addressed Husband’s assignments of error
above, we decline to further address this assignment of error.
{¶56} Husband’s eighth assignment of error is overruled. 20
III.
{¶57} Husband’s third assignment of error is sustained in part. Husband’s remaining
assignments of error are overruled. The judgment of the Summit County Court of Common
Pleas, Domestic Relations Division is affirmed in part and reversed in part. This matter is
remanded for proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR FOR THE COURT 21
TEODOSIO, J. CONCURS.
SCHAFER, P. J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
DAVID M. LOWRY, Attorney at Law, for Appellant.
TERENCE E. SCANLON, Attorney at Law, for Appellee.