Johnson v. Johnson

2019 Ohio 1024

• Court: Ohio Court of Appeals
• Decided: March 22, 2019
• Docket: 2018-CA-36
• Status: Published

Opinion

[Cite as Johnson v. Johnson, 2019-Ohio-1024.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

JENNIFER L. JOHNSON : : Plaintiff-Appellee : Appellate Case No. 2018-CA-36 : v. : Trial Court Case No. 2016-DR-171 : DAVID L. JOHNSON : (Appeal from Common Pleas Court- : Domestic Relations Division) Defendant-Appellant : :

...........

OPINION

Rendered on the 22nd day of March, 2019.

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

DAVID L. JOHNSON, P.O. Box 364, Fairborn, Ohio 45324 Defendant-Appellant, Pro Se

............. -2-

FROELICH, J.

{¶ 1} David L. Johnson appeals a final judgment and decree of divorce entered by

the Greene County Common Pleas Court, Domestic Relations Division. The judgment of

the trial court will be affirmed in part and reversed in part, and the matter will be remanded

for further proceedings.

Factual Background and Procedural History

{¶ 2} David L. Johnson (“David”) and Jennifer L. Johnson (“Jennifer) were married

on October 20, 2001, and are the parents of two minor children. Since 2001, Jennifer has

worked for United Healthcare, where she is paid an annual salary plus occasional

bonuses. David has been self-employed since 2001 as the sole proprietor of a computer

repair and custom computer building business. Jennifer filed a complaint for divorce on

July 29, 2016. The parties agreed to use June 28, 2016, the date that David vacated the

marital residence, as the date of their separation for purposes of the division of property.

{¶ 3} A hearing to determine the parties’ respective incomes and to identify and

categorize their assets and liabilities took place before the trial court over three dates:

June 27, 2017; August 22, 2017; and October 24, 2017. On August 2, 2018, the court

issued a final judgment and decree of divorce that incorporated the parties’ agreement

regarding custody and parenting time, then set forth the court’s determinations regarding

the payment of child support and spousal support, the division of the parties’ assets and

liabilities, and the allocation of attorneys’ fees and costs.

{¶ 4} David’s pro se appeal from that judgment raises 13 assignments of error:

1) [The trial court] abused [its] discretion and acted contrary to the law

when [it] ruled that [David] must pay [Jennifer]’s attorney’s fees when -3-

[Jennifer] did not seek attorney’s fees at the final hearing.

2) [The trial court] abused [its] discretion and did not provide an equitable

award of attorney fees.

3) [The trial court] erred when [it] did not give [David] credit for the $750 he

paid [Jennifer] for attorney fees.

4) [The trial court]’s ruling that [David]’s attitude and behavior were

responsible for 100% of [Jennifer]’s attorney fees is against the manifest

weight of evidence.

5) After ruling that [Jennifer]’s credit card bills went 100% with the joint

marital home, [the trial court] erred and abused [its] discretion when [it]

did not use this liability in calculation [sic] the parties[’] equity in the

marital home.

6) [The trial court]’s ruling that [Jennifer]’s credit card bills went 100% with

the joint marital home is against the manifest weight of evidence.

7) [The trial court] acted contrary to ORC 3119 when [it] calculated

[David]’s income using his gross self employment profit instead of his

net self employment income.

8) [The trial court] made a mathematical error in calculating [David]’s

annual income for the purposes of the divorce calculations. $1,200 per

month x 12 months is $14,400 not $24,000. Therefore, [the trial court]

erred in [its] follow on [sic] calculations that used the wrong number for

[David]’s annual income.

9) [The trial court] erred when [it] did not rule on [David]’s $6,000 -4-

inheritance and the equitable division of [Jennifer]’s Morgan Stanley

account which had a balance of $1,933 on the date of separation.

10) [The trial court] erred when [it] ruled that $1,500 of [Jennifer]’s 401K

account, $300 of [Jennifer]’s ESSP1 account, and $1,744.43.43 [sic] of

[Jennifer]’s roll[-]over IRA account are separate property due to pre-

marital contributions.

11) [The trial court] erred when [it] did not provide an equitable distribution

of the parties[’] 2016 Federal tax refunds.

12) [The trial court] both erred and abused [its] discretion when [it] allowed

credit card payments of $3,885, made after the date of separation by

[Jennifer] on her personal credit cards, to be assessed against [David].

13) The total credit card balances of $38,204.72 on the date of separation

are inconsistent with exhibits and testimony.

ANALYSIS

{¶ 5} For ease of analysis, we have grouped David’s 13 assignments of error into

four broad categories: 1) challenges to the trial court’s classification of property as marital

or separate property (Assignments of Error #9-10); 2) challenges to the trial court’s

allocation and/or distribution of assets and liabilities (Assignments of Error #5-6, #11-13);

3) challenges to the trial court’s calculation of David’s income (Assignments of Error #7-

8); and 4) challenges to the trial court’s allocation of attorney’s fees (Assignments of Error

#1-4).

1 Presumably this refers to Jennifer’s Employee Stock Purchase Plan, or “ESPP,” account. (See 6/27/16 Hearing Tr., p. 183). -5-

Assignments of Error #9, 10 – Marital versus Separate Property

{¶ 6} In his tenth assignment of error, David challenges the trial court's decision to

treat as Jennifer’s separate property certain amounts held in accounts in Jennifer’s name.

Specifically, David urges that the trial court erred by accepting without corroboration

Jennifer’s testimony that $1,500 in her 401(k) retirement account, $300 in her ESPP2

account, and the entire $1,744.43 balance of her roll-over individual retirement account

(“IRA”) represented contributions she made to those accounts before she and David were

married. Similarly, David’s ninth assignment of error asserts that the trial erred by failing

to rule on whether $6,000 that David deposited into Jennifer’s checking account was

David’s separate property inherited from his “Aunt Becky,” and whether $1,932.79 held in

Jennifer’s Morgan Stanley account was marital property that should have been divided

with David. Because these assignments implicate the same standard of review and the

same legal principles governing the division of property, we will address them together.

a. Standard of Review

{¶ 7} “A trial court has broad discretion when dividing marital property.” Williams v.

Williams, 2018-Ohio-611, 106 N.E.3d 317, ¶ 7 (2d Dist.), citing Bisker v. Blake, 69 Ohio

St.3d 608, 609, 635 N.E.2d 308 (1994), citing Berish v. Berish, 69 Ohio St.2d 318, 432

N.E.2d 183 (1982). We review property distributions in divorce proceedings for an abuse

of that discretion. Rucks v. Moore, 2d Dist. Montgomery No. 27928, 2018-Ohio-4692, ¶

7, citing Loughman v. Loughman, 2d Dist. Montgomery No. 25835, 2014-Ohio-2449, ¶

22. An abuse of discretion occurs when the trial court's decision is unreasonable,

arbitrary, or unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

2 See fn.1, above. -6-

450 N.E.2d 1140 (1983).

{¶ 8} Despite the trial court’s broad discretion regarding the division of property, “a

trial court’s classification of property as marital or separate must be supported by the

manifest weight of the evidence.” Bakle v. Bakle, 2d Dist. Greene No. 2009 CA 9, 2009-

Ohio-6003, ¶ 16, citing Mays v. Mays, 2d Dist. Miami No. 2000-CA-54, 2001 WL 1219345,

*6 (Oct. 12, 2001). “When we consider manifest weight arguments, we ‘review the

evidence, and * * * determine whether, when appropriate deference is given to the factual

conclusion of the trial court, the evidence persuades us by the requisite burden of proof.’ ”

Id., citing Cooper v. Cooper, 2d Dist. Greene App. Nos. 2007-CA-76 and 2007-CA-77,

2008-Ohio-4731, ¶ 25; Howard v. Howard, 2d Dist. Montgomery No. 16542, 1998 WL

127526 (Mar. 20, 1998).

{¶ 9} “A trial court must indicate the basis for its division of marital property in

sufficient detail to enable a reviewing court to determine whether the award is fair,

equitable, and in accordance with the law.” Janis v. Janis, 2d Dist. Montgomery No.

23898, 2011-Ohio-3731, ¶ 43, citing Young v. Young, 2d Dist. Clark Nos. 08CA59 and

08CA61, 2009-Ohio-3504, ¶ 6, and R.C. 3105.171(G). Additionally, a trial court’s failure

to consider the factors set forth at R.C. 3105.171(F) to guide the division of marital

property is an abuse of discretion. Mays at *6.

b. Law Applicable to Division of Property in Divorce

{¶ 10} “When dividing married parties’ assets and liabilities upon divorce, a court

must first determine what is marital property and what is not.” Bergman v. Bergman, 2d

Dist. Montgomery No. 25378, 2013-Ohio-715, ¶ 27. The trial court must classify specific

property as marital or separate, and where appropriate, must distribute separate property -7-

to the owner. Id., citing R.C. 3105.171(B) and (D). The court’s classification must be

supported by competent, credible evidence. Id., citing Mays at *3; Renz v. Renz, 12th

Dist. Clermont No. CA2010-05-034, 2011-Ohio-1634, ¶ 17.

{¶ 11} The classification of property is governed by R.C. 3105.171. Per R.C.

3105.171(A)(3)(a), “marital property” includes:

(i) All real and personal property that currently is owned by either or both of

the spouses, including, but not limited to, the retirement benefits of the

spouses, and that was acquired by either or both of the spouses during the

marriage;

(ii) All interest that either or both of the spouses currently has in any real or

personal property, including, but not limited to, the retirement benefits of the

spouses, and that was acquired by either or both of the spouses during the

(iii) Except as otherwise provided in this section, all income and appreciation

on separate property, due to the labor, monetary, or in-kind contribution of

either or both of the spouses that occurred during the marriage.

{¶ 12} In contrast, under R.C. 3105.171(A)(6)(a), “separate property” is defined, in

pertinent part, as “all real and personal property and any interest in real or personal

property that is found by the court to be any of the following:”

(i) An inheritance by one spouse by bequest, devise, or descent during the

course of the marriage;

(ii) Any real or personal property or interest in real or personal property that

was acquired by one spouse prior to the date of the marriage; -8-

(iii) Passive income and appreciation acquired from separate property by

one spouse during the marriage

***

(vii) Any gift of real or personal property or of an interest in real or personal

property that is made after the date of the marriage and that is proven by

clear and convincing evidence to have been given to only one spouse.

{¶ 13} “The commingling of separate property with other property of any type does

not destroy the identity of the separate property as separate property, except when the

separate property is not traceable.” R.C. 3105.171(A)(6)(b). Additionally, “the holding of

title to property by one spouse individually or by both spouses in a form of co-ownership

does not determine whether the property is marital or separate property. Instead, the

couple’s total circumstances are reviewed.” Bergman, 2d Dist. Montgomery No. 25378,

2013-Ohio-715, at ¶ 30, quoting Nuding v. Nuding, 3d Dist. Mercer No. 10-97-13, 1998

WL 856923 (Dec. 7, 1998). See also R.C. 3105.171(H).

{¶ 14} The proponent of a claim that specific property is separate, not marital,

bears the burden to prove that claim by a preponderance of the evidence. Bergman at ¶

31, citing Peck v. Peck, 96 Ohio App.3d 731, 734, 645 N.E.2d 1300 (12th Dist.1994);

Snyder v. Snyder, 2d Dist. Clark No. 2002-CA-6, 2002 WL 1252835, *3. “Oral testimony

as evidence, without corroboration, may or may not satisfy the burden.” Bergman at ¶ 31,

quoting Maloney v. Maloney, 160 Ohio App.3d 209, 2005-Ohio-1368, 826 N.E.2d 864, ¶

23 (2d Dist.). As traceability presents a question of fact, we must defer to the trial court

on that issue, “and the court’s decision on the matter will not be reversed as against the

manifest weight of the evidence when it is supported by competent, credible evidence.” -9-

Maloney at ¶ 23, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376

N.E.2d 578 (1978).

{¶ 15} “Once it is proven that specific property was the separate property of one of

the spouses at, or after, the time of the marriage, the burden shifts to the other spouse to

prove, by clear and convincing evidence, that the property, or some interest therein, has

been given to the other spouse.” Bergman at ¶ 31, quoting Snyder at *3, citing Helton v.

Helton, 114 Ohio App.3d 683, 685, 683 N.E.2d 1157 (2d Dist.1996).

c. Jennifer’s 401(k), ESPP and IRA accounts

{¶ 16} Jennifer presented evidence that her 401(k) account through Fidelity

Investments had a balance of $65,790.59 as of June 30, 2016. (6/27/17 Hearing Tr., p.

180). Although she was unable to obtain records about that account from 2001, she

testified that any deposits made to that account from January 2001 (when the account

was opened) to October 2001 (when she and David were married) would be pre-marital

property, which she estimated to amount to about $1,500.00. (Id., p. 181). David

presented no contrary evidence.

{¶ 17} The trial court acted within the scope of its discretion by accepting Jennifer’s

uncorroborated oral testimony as sufficient proof that $1,500 of the 401(k) account’s

$65,790.59 balance was Jennifer’s separate property. See Bergman, 2d Dist.

Montgomery No. 25378, 2013-Ohio-715, at ¶ 31. We cannot say that the trial court acted

unreasonably by crediting to Jennifer as pre-marital property less than 2.3 percent of the

balance accumulated in that account over a 16-year period. Because competent, credible

evidence supports the trial court’s factual determination, we must defer to the trial court

on that issue. Maloney, 160 Ohio App.3d 209, 2005-Ohio-1368, 826 N.E.2d 864, at ¶ 23. -10-

David’s assignment of error is not well taken as to Jennifer’s 401(k) account.

{¶ 18} The trial court also did not abuse its discretion by making a similar

determination as to Jennifer’s ESPP account. Jennifer testified that her ESPP account

was opened in January 2001 and that she contributed approximately $300 to that

account before the date of her October 2001 marriage. (6/27/17 Hearing Tr., pp. 183-

184). She presented evidence that the balance in the ESPP account was $12,568 on

June 30, 2016. (Id., p. 184). Although the trial court indicated during the hearing that

Jennifer’s $300 estimate was “not going to be good enough” (id.), it held otherwise in the

final judgment entry, finding “that $300 of [Jennifer’s] ESPP account is [her] separate

property due to pre-marital contributions” she made. (8/2/18 Final Judgment and Decree

of Divorce, p. 20).

{¶ 19} Again, we cannot say that the trial court acted unreasonably or arbitrarily by

determining that less than 2.4 percent of the ESPP’s $12,568 balance accumulated over

16 years was Jennifer’s separate, pre-marital property. We must defer to the trial court’s

factual determination, which is supported by competent, credible evidence. See Bergman

at ¶ 31; Maloney at ¶ 23.

{¶ 20} Similarly, as to Jennifer’s roll-over IRA, she presented evidence that the

balance in that account was $1,744.43 when it was rolled over to create a new Fidelity

account in July 2016. (6/27/27 Hearing Tr., p. 191). Jennifer testified that the entirety of

that balance came from contributions to a 401(k) plan she had through a prior employer,

before 1999 and therefore before her marriage. (Id., pp. 186-188). She rolled the original

401(k) plan into a Morgan Stanley account upon leaving that prior employer in 1999, then

later rolled the Morgan Stanley account into an account with Fidelity Investments in order -11-

to avoid Morgan Stanley’s high fees. (Id., pp. 188-192). Jennifer testified that she made

no withdrawals from or contributions to that account after 1999. (Id., pp. 191-193). The

trial court credited her testimony, ruling “that the entire balance of the rolled-over Fidelity

account is [Jennifer’s] separate property.” (8/2/18 Final Judgment and Decree of Divorce,

p. 21). The trial court did not abuse its discretion in making that factual determination

based on competent and undisputed evidence in the record, and we will not disturb the

trial court’s conclusion. See Bergman at ¶ 31; Maloney at ¶ 23.

{¶ 21} Our conclusion regarding the trial court’s treatment of Jennifer’s roll-over

IRA also disposes of David’s contention that the trial court “did not rule on * * * the

equitable division of [Jennifer’s] Morgan Stanley account.” (Assignment of Error #9). The

record demonstrates that the proceeds of Jennifer’s Morgan Stanley account were what

was “rolled over” to create the Fidelity roll-over IRA that the trial court found to be entirely

Jennifer’s separate property. (See 8/2/18 Final Judgment and Decree of Divorce, p. 21).

David’s suggestion that the trial court “did not rule on” that issue is mistaken. Furthermore,

to the extent that David’s argument challenges the discrepancy between the Morgan

Stanley account’s “balance of $1,933 on the date of separation” (see Assignment of Error

#9) and the successor Fidelity account’s balance of $1,744 cited in the trial court’s ruling

(see 8/2/18 Final Judgment and Decree of Divorce, p. 21),3 that discrepancy is irrelevant.

Regardless of the exact amount in that account on the parties’ separation date, the trial

court found that none of it was marital property, and David therefore was not entitled to

3 Jennifer explained the lower balance when the account was transferred to Fidelity in July 2016 was “because I was being charged a lot of fees from Morgan Stanley” (6/27/17 Hearing Tr., p. 191) – the very reason she made that transfer. (See id. at p. 188). -12-

share in that property. Any error in that regard was harmless, and his allegation of error

on that basis is overruled.

d. David’s Inheritance

{¶ 22} David also contends that the trial court erred by failing to address David’s

claim that $6,000 placed into Jennifer’s checking account was David’s separate property,

derived from $7,031.04 that he inherited “from his Aunt Becky in January 2017.”4 (Brief

of Appellant, p. 21). What appears to be the first reference to that purported “inheritance”

appears during a discussion about “Defendant’s Exhibit A” presented at the June 27, 2017

hearing:

[David’s counsel]: Your Honor, * * * [t]he list that is, that was just

handed to you as Exhibit A was the list of property that my client wanted

from the home or at least from the marriage. It includes inherited property.

This is not a comprehensive list of all the personal property of the

parties. This list does not include much of the personal property that my

client was willing to forgo and allow his wife to retain.

[Jennifer’s counsel]: In regard to the inheritance – inherited property,

Your Honor, if I may, it was my understanding that there was some property

garnished [sic] 5 from a family member; however, that property wasn’t

garnished [sic] through a will, so I think calling it inheritance is a very loose

definition of the word inheritance.

4 The testimony David cites indicates that he actually received that money in January 2016. (See 10/24/17 Hearing Tr., p. 69). 5 Given the context, it appears that counsel meant the property was acquired or “garnered” from a family member, not “garnished” in the legal sense of that word (i.e., seized to settle a debt). -13-

It was a, as a family, everybody went in, took what they wanted and

came home with it. There was no specific thing willed or inherited to any

individual in this marriage.

(Emphasis added.) (6/27/17 Hearing Tr., pp. 21-22).

{¶ 23} Given the parties’ lack of agreement about the division of personal property

at that time, the trial court indicated that “we’ll reset the matter for a further hearing on this

property issue * * *.” (Id., p. 25). The court then continued:

And the fact that somebody wants to testify and says this was

inherited, isn’t going to be enough. That burden will not be satisfied by

somebody saying, I inherited this.

I need some evidence, some proof it’s in the list of property received

from an estate, etc., etc., so enough said on that.

(Id., p. 26).

{¶ 24} When Jennifer testified during the reconvened hearing on August 22, 2017,

the following information regarding David’s alleged inheritance was elicited:

[David’s counsel]: Ma’am, did David contribute to any expenses of the

household during the period of time of your accumulation of the credit card

debt?

[Jennifer]: During our entire marriage, yes. I mean –

[David’s counsel]: In fact, didn’t he get money when his Aunt Becky passed

away?

[Jennifer]: Yes.

[David’s counsel]: And did he contribute that to the marital finances? -14-

[David’s counsel]: And how much was that, do you recall?

[Jennifer]: I do not recall.

[David’s counsel]: (presents Defendant’s Exhibit S) Do you recognize that

document or those documents?

[David’s counsel]: Is that the, is that check representative of the amount that

David got due to the passing of his Aunt Becky?

[Jennifer]: I’m assuming.

[David’s counsel]: Do you recall him getting the amount for the passing of

his Aunt Becky?

[Jennifer]: Yes, but I don’t know what it – I don’t recall what it is. So this is

what the checks say –

[David’s counsel]: And you don’t dispute that then?

[Jennifer]: No.

[David’s counsel]: Do you see the last page of the second page of that,

which is where it went into your account?

[Jennifer]: These did not go into my account. He transferred money into my

account.

[David’s counsel]: Okay. So the checks, the check itself was not deposited

directly in your account. He gave you that money after he deposited it into

his account; is that what you’re saying? -15-

[Jennifer]: He transferred money to me. These checks were –

– not deposited to me. So he gave me money, yes.

[Trial Court]: What’s the date on the check?

[Jennifer]: The checks were dated January 22nd of 2016.

[David’s counsel]: And what is the amount of that check?

[Jennifer]: There are two, $4,060.05 and $2,970.99.

[David’s counsel]: And how was that money used once it went into your

account, ma’am?

[Jennifer]: I would have used it to pay things that needed to be paid.

[David’s counsel]: Which would have included day-to-day living expenses

or even possibly contributions toward the outstanding debt of the family; is

that right?

[Jennifer]: I cannot comment on what it went toward. I – it went toward

paying bills. * * *.

(8/22/17 Hearing Tr., pp. 102-106).

{¶ 25} Despite the foregoing testimony, David directs us only to the transcript of

the October 24, 2017 hearing, which includes the following discussion regarding the

subject of his “inheritance”:

[Trial Court]: (to David’s counsel) Okay. First of all, anything on the divorce

issues that you want another shot at presenting * * *? -16-

[David’s counsel]: Yes, Your Honor, I would call David Johnson to the stand

again.

[Trial Court]: Okay. This is new information and not something that we have

gone over before?

[David’s counsel]: * * * [T]here was a $6,000 inheritance that my client

received from his aunt who passed away. I don’t believe that there was a

will involved, and I do remember discussing this to some extent.

[Trial Court]: Let me see what notes I’ve got.

[Trial Court]: Inheritance checks, both are dated 1-22-16. One was

$4,060.05. The other one was $2,970.99.

[Trial Court]: Mr. Johnson said he transferred some of the money to Ms.

Johnson, and she paid bills with it.

[David]: Well, your Honor, she never paid any credit card bills with it, so I

gave her $6,000.00 to pay credit cards [sic] bills. She never paid any credit

card bills. She’s only paying monthly minimums, if that.

Four months prior to separation, I handed her the checks. Once,

again, prior to contemplation of divorce, she talked me into giving her

$6,000.

[Trial Court]: The point is, * * * we’ve been over this issue, and we don’t

need anymore on it.

(10/24/17 Hearing Tr., pp. 68-70). -17-

{¶ 26} Pursuant to R.C. 3015.171(A)(6)(a)(i), “an inheritance is generally

considered a party’s separate property.” St. Germaine v. St. Germaine, 2d Dist. Greene

No. 2009 CA 28, 2010-Ohio-3656, ¶ 16. However, “spouses can change separate

property to marital property based on actions during the marriage.” Helton, 114 Ohio

App.3d 683, 685, 683 N.E.2d 1157. “The most commonly recognized method for effecting

this change is through an inter vivos gift of the property from the donor spouse to the

donee spouse.” (Emphasis sic.) Id.; see also Miller v. Miller, 6th Dist. Sandusky No. S-

19-19, 2018-Ohio-5285, ¶ 10 (“Parties can transmute separate property into marital

property by means of an inter vivos gift,” particularly “where * * * there has been effected

a reduction of the parties’ joint obligation * * *.”).

{¶ 27} “The essential elements of an inter vivos gift are ‘(1) an intention on the part

of the donor to transfer the title and right of possession of the particular property to the

donee then and there and (2), in pursuance of such intention, a delivery by the donor to

the donee of the subject-matter of the gift to the extent practicable or possible, considering

its nature, with relinquishment of ownership, dominion and control over it.’ ” (Emphasis

sic.) Helton at 685-686, quoting Bolles v. Toledo Trust Co., 132 Ohio St. 21, 4 N.E.2d 917

(1936), paragraph one of the syllabus. Under our jurisprudence, the donee bears the

burden to show “by clear and convincing evidence that the donor made an inter vivos

gift.” (Emphasis sic.) Id. at 686; accord Snyder v. Snyder, 2d Dist. Clark No. 2002-CA-6,

2002-Ohio-2781, *3 (“Once it is proven that specific property was the separate property

of one of the spouses at, or after, the time of the marriage, the burden shifts to the other

spouse to prove, by clear and convincing evidence, that the property, or some interest

therein, has been given to the other spouse.”). -18-

{¶ 28} Here, the trial court’s final judgment nowhere specifically addresses the

issue of David’s claimed inheritance. (See 8/2/18 Final Judgment and Decree of Divorce,

generally and at p. 9, under “Personal Property” heading). Accordingly, while the trial

court did not treat the amount of that claimed inheritance as David’s “separate property”

for purposes of the parties’ property distribution, we are unable to discern from the record

whether that result was due to an oversight, the trial court’s conclusion that the property

David received following his aunt’s death did not qualify as an “inheritance” within the

meaning of R.C. 3015.171(A)(6)(a)(i) (see 6/27/17 Hearing Tr., p. 22),6 the trial court’s

conclusion that the evidence clearly and convincingly demonstrated that David made an

inter vivos gift from that inheritance by transferring $6,000 into a checking account bearing

Jennifer’s name alone, from which she paid marital bills, or some other reason.

{¶ 29} We conclude that the trial court abused its discretion by failing to articulate

its reasons, consistent with R.C. 3015.171, for treating the amount of David’s claimed

inheritance as marital property and not as his separate property. David’s ninth assignment

of error therefore is sustained only as to that narrow issue, and this matter will be

remanded for that limited purpose.

Assignments of Error #5, 6, 11, 12, 13 – Allocation of Liabilities/Assets

{¶ 30} David’s assignments of error within the next grouping all raise challenges

to the trial court’s allocation or distribution of the parties’ liabilities and assets. Specifically,

David deems “against the manifest weight of the evidence” the trial court’s determination

that the parties’ cumulative credit card debt existing on the date of their separation all

6 There, Jennifer’s attorney questioned whether the property David received after Aunt Becky’s death fell within the definition of “inheritance,” since that property did not pass “through a will.” -19-

stemmed from expenditures for improvements to the marital home. (Assignment of Error

#5). He also contends that, having made that determination, the trial court further erred

and abused its discretion by failing to factor in the amount of that credit card liability when

calculating the parties’ equity in the marital home (Assignment of Error #6), and by

“assess[ing] against” David payments made by Jennifer “on her personal credit cards”

after the date of the parties’ separation (Assignment of Error #12). Furthermore, David

maintains that the total amount the trial court determined to be owed on the parties’ credit

cards was “inconsistent with exhibits and testimony” (Assignment of Error #13); and that

the trial court erred by “not provid[ing] an equitable distribution of the parties[’] 2016

Federal tax returns.” (Assignment #11).

a. Standard of Review/Applicable Law

{¶ 31} As noted above, we review a trial court’s decisions regarding the distribution

of property for an abuse of discretion. Rucks, 2d Dist. Montgomery No. 27928, 2018-

Ohio-4692, at ¶ 7. When considering manifest-weight arguments, we review the evidence

to “determine whether, when appropriate deference is given to the factual conclusion[s]

of the trial court, the evidence persuades us by the requisite burden of proof.” Bakle, 2d

Dist. Greene No. 2009 CA 9, 2009-Ohio-6003, at ¶ 16. Additionally, the trial court must

provide sufficient detail about its property division to allow us “to determine whether the

award is fair, equitable, and in accordance with the law.” Janis, 2d Dist. Montgomery No.

23898, 2011-Ohio-3731, at ¶ 43.

b. Assignment #11 - the Parties’ 2016 Tax Refunds

{¶ 32} The trial court’s final judgment stated in pertinent part with regard to the

parties’ income tax refunds for 2015 and 2016: -20-

The parties each filed Married Filing Separately for tax years 2015

and 2016. [David] requested that he be awarded one-half of [Jennifer’s]

2015 tax refund and a portion of [Jennifer’s] 2016 tax refund for the part of

the year they continued to reside together (January to June 2016). [David]

agreed that [Jennifer] was entitled to [the] same from his tax refunds for

2015 and 2016. [Jennifer] admitted on the record that if her income was

marital, her refund was also marital.

According to Defendant’s Exhibit J, [David]’s 2015 tax return, [David]

received a tax refund [that year] of $1,786.00. According to Defendant’s

Exhibit N, [Jennifer]’s 2015 tax return, [Jennifer] received a refund [that

year] of $6,741.00. According to Defendant’s Exhibit P, [David]’s 2016 tax

return, [David] owed $346 [in 2016]. No evidence was presented as to

[Jennifer]’s tax return from 2016.

The Court finds that the tax returns [sic]7 for tax year 2015 were

marital property. Therefore, each party is entitled to one-half (1/2) of the

other’s return [sic]. [Jennifer]’s portion of [David]’s return [sic] ($1,786.00 / 2

= $893.00) shall be used to offset the amount [Jennifer] owes [David]

($6,741.00 / 2 = $3,370.50). Accordingly, [Jennifer] is hereby Ordered to

pay [David] $2,477.50. * * *

(Emphasis added.) (8/2/18 Final Judgment and Decree of Divorce, pp. 11-12).

{¶ 33} David contends that the trial court was mistaken in stating that it had no

7 Presumably the trial court’s references in this paragraph to tax “returns” actually were intended to mean tax “refunds.” -21-

evidence regarding Jennifer’s 2016 tax return. He points to a portion of the record where

Jennifer presented into evidence “Plaintiff’s Exhibit 49,” identified as her “2016 Federal

Tax Return.” (6/27/17 Hearing Tr., pp. 152-153). David argues that the trial court erred by

not awarding him a portion of the refund that Jennifer was to receive for 2016, based on

that 2016 return.

{¶ 34} David further notes the trial court’s specific finding that David owed $346 in

taxes for 2016 (see 8/2/18 Final Judgment and Decree of Divorce, p. 12), and argues that

the trial court should have ordered Jennifer to pay a portion of that marital debt.

{¶ 35} Because it appears from the record that the trial court did have evidence of

the amount of Jennifer’s 2016 federal income tax refund, and that the trial court also failed

to direct Jennifer to reimburse David for one-half of that portion of his 2016 income tax

owed that was attributable to the months before the parties’ separated, David’s

Assignment of Error #11 is sustained. This matter will be remanded for the limited purpose

of having the trial court calculate and award to David the amount representing David’s

share of Jennifer’s 2016 tax refund for the period from January 1, 2016 through their June

28, 2016 separation date, plus Jennifer’s share of David’s 2016 tax indebtedness from

that same period.

c. Assignments #5, 6, 12 – Allocation of Credit Card Debt

{¶ 36} David contends that the manifest weight of the evidence does not support

the trial court’s conclusion that all of the parties’ credit card debt on their separation date

was attributable to expenditures they made as a couple toward the marital residence.

(Assignment of Error #6). In related arguments, he urges that the trial court erred by not

considering that credit card indebtedness when calculating the parties’ equity in the -22-

marital residence (Assignment #5), and by holding David accountable for a share of credit

card payments Jennifer made after the parties separated. (Assignment #12).

{¶ 37} On the subject of the parties’ credit card debts, the trial court’s final

judgment stated in part as follows:

The parties purchased the marital residence * * * in February, 2005.

[David] gutted the home pursuant to the parties’ plans to renovate the three-

story dwelling. Both parties testified that they purchased building materials

for the home, however the method of purchase is in dispute between the

parties. Also in dispute is whether [David] should be responsible for

reimbursing [Jennifer] for payments made on the credit cards since the

parties physically separated on June 28, 2016.

[Jennifer] testified that the parties used multiple credit cards to pay

for the [building] materials[,] which [cards] still carry significant balances,

and are currently in [Jennifer]’s name only. [Jennifer] testified that the

materials that were not used to renovate the home before the parties

separated remain in the marital residence. [David] testified that the majority

of the materials were purchased with his own personal credit cards, and

some materials were purchased with the equity line of credit and other credit

cards. [David] testified that the [four current] credit cards in dispute were

used for vacations, dining out, children’s expenses, the marital residence,

and [David’s] business. * * * [Jennifer] is asking the Court to allocate all of

the debt to [David] since he retained the renovation materials [by virtue of

remaining in the residence], or in the alternative split the debt equally -23-

between the parties. [Jennifer] also asks the Court to Order [David] to

reimburse [Jennifer] for her continued monthly payments on the credit card

debts since the parties separated in June, 2016. [David] is asking the Court

to allocate all of the debt to [Jennifer] because it is separate debt which was

not accumulated for home renovations.

[Jennifer] testified that she was not able to obtain credit card

statements going back to 2005 when the materials were originally

purchased. [She] also testified that the balances have been moved around

numerous times [among various credit cards] to avoid paying interest,

making it difficult to trace the origins of the current balances. [Jennifer]

testified that she managed the finances during the marriage and [she]

provided detailed testimony about the credit cards, as well as numerous

statements for all four cards [that had outstanding balances on the date the

parties separated]. [David]’s testimony disputed [Jennifer]’s claims about

the credit cards, but he presented no supporting evidence.

The Court found [Jennifer] to be a more credible witness throughout

the duration of the trial, especially in matters related to finance[s]. The Court

also found that [Jennifer] provided evidence to support her testimony about

the use of the credit cards. Therefore, the Court finds that the credit card

debts [for the four credit cards in dispute] were incurred for the purchase of

home renovation materials, and that the debts are marital. Since [David]

retained the marital residence and all used and unused renovation -24-

materials, the Court finds it equitable to hold [David] responsible for 100%

of the credit card debt. * * *

(8/2/18 Final Judgment and Decree of Divorce, pp. 12-15).

{¶ 38} The trial court noted that David had offered evidence showing that Jennifer

used one of the four disputed credit cards (“the Upromise card”) “for non-balance transfer

purposes,” but the court nonetheless concluded that David had “fail[ed] to demonstrate

that the current [Upromise] balance stems from non-renovation purposes.” (Id., pp. 13-

14). Instead, the court found the evidence showed that when Jennifer made purchases

on that card, those purchases “were paid off the following month. The remaining balance

as of the last statement provided shows the balance to be from balance transfers, not

purchases.” (Id., p. 14).

{¶ 39} Giving appropriate deference to the trial court’s findings of fact, we cannot

conclude that the trial court’s decision was against the manifest weight of the evidence.

See Bakle, 2d Dist. Greene No. 2009 CA 9, 2009-Ohio-6003, at ¶ 16. While David

undoubtedly disagrees with the trial court’s assessment of the parties’ credibility, he has

directed us to nothing in the record demonstrating that the court’s factual conclusions

were objectively wrong. “The trial court was entitled to decide which testimony to credit,

since it was in the position to view the witnesses and assess their credibility.” See

Edwards v. Edwards, 2d Dist. Montgomery No. 25309, 2013-Ohio-117, ¶ 40. Moreover,

we must defer to the trial court’s findings of fact as to the traceability of assets or liabilities,

and will not reverse the trial court’s decision if “it is supported by competent, credible

evidence.” See Maloney, 160 Ohio App.3d 209, 2005-Ohio-1368, 826 N.E.2d 864, at ¶

23. -25-

{¶ 40} Because the trial court detailed evidence, particularly testimony by Jennifer,

that supports its conclusion that the parties’ earlier purchases of home renovation

materials were the source of the credit card debt remaining at the time of their separation,

David’s sixth assignment of error is overruled.

{¶ 41} In a related argument, David’s fifth assignment of error proposes that the

amount of the parties’ outstanding credit card debt should have been deducted from the

value of the marital home when the parties’ equity in that property was calculated. He

maintains that if the subject credit card debt were incurred for expenses related to the

real property, as the trial court found, that debt was “no different” than a home equity loan

or a mortgage. In effect, David seeks to have the parties’ unsecured credit card debt

treated as though it were secured debt. Significantly, he cites no legal authority for that

argument.

{¶ 42} David’s approach would, as he acknowledges, result in the parties’ marital

residence having “negative equity” – i.e., David would both keep the house and collect a

substantial sum from Jennifer for doing so. It fell within the scope of the trial court’s broad

discretion for the court to decline to apply a “negative equity” approach that would require

Jennifer to pay David more than $19,000 simply because she surrendered the house and

he retained it. See Williams, 2d Dist. No. 2017-CA-47, 2018-Ohio-611, 106 N.E.3d 317,

at ¶ 7.

{¶ 43} Additionally, the record shows that some portion of the outstanding credit

card debt relates to tangible property possessed by David but not yet affixed as part of

the house when the parties separated. As the trial court noted, Jennifer testified that not

all of the building materials purchased actually had been installed in the residence by -26-

June 28, 2016. Those unused materials “remain in the marital residence” and were

acquired by David. It was neither unreasonable nor arbitrary for the trial court to decide

that Jennifer should not be required to pay David for half the value of materials that he

might choose to sell or to use to increase the value of a home in which Jennifer no long

had any financial interest.8 David’s fifth assignment of error is overruled.

{¶ 44} In his twelfth assignment of error, also related to the issue of credit card

debt, David objects to the trial court’s order that David reimburse Jennifer for all payments

she made toward that debt after the parties separated but before the divorce decree was

entered. In the final judgment order, after remarking on the combined balance of the credit

card debt as of June 28, 2016, the trial court stated:

[Jennifer] testified that she made all the [credit card] payments in the [year

between the separation date and the June 27, 2017 hearing], totaling

$2,548.92. When the parties returned for the second day of trial on August

22, 2017, [Jennifer] presented evidence that she paid an additional

$1,335.92 on the credit cards since the first day of trial. [Jennifer] paid a

total of $3,884.83 since the physical separation on June 28, 2016. [Jennifer]

testified that [David] did not contribute any money towards the payment of

the debt, which [David] did not dispute.

(8/2/18 Final Judgment and Decree of Divorce, p. 14). The court then ordered David to

reimburse Jennifer for the full amount of her post-separation payments toward the credit

card debt. (Id., p. 15).

8 Furthermore, the record contains no evidence distinguishing between the value of the building materials actually installed in the home during the parties’ marriage and the value of the unused materials that remain in David’s possession. -27-

{¶ 45} David does not dispute the trial court’s findings as to the amount of

Jennifer’s post-separation credit card payments, but argues that he should not be

responsible for paying what he characterizes as Jennifer’s “personal” credit card debt.

The trial court’s explicit findings as to the nature of that debt, however, belie David’s

characterization. Having concluded above that the trial court did not err by attributing all

of the parties’ credit card debt to the cost of building materials that accrued to David’s

benefit, we likewise conclude that the court did not err by requiring David to reimburse

Jennifer for credit card payments she made toward that debt after the parties’ official

separation and before the divorce decree was issued. David’s twelfth assignment of error

is overruled.9

d. Assignment of Error #13 – Calculation of Credit Card Debt

{¶ 46} David’s final assignment of error takes issue with the amount of the parties’

outstanding credit card debt as calculated by the trial court. David asserts that the trial

court erred by relying on the closing balances shown on statements for each credit card

“instead of the actual balance on June 28, 2016.” Based on his own calculations, David

urges that instead of the $38,204.72 figure cited by the trial court (see 8/2/18 Final

Judgment and Decree of Divorce, p. 14), the amount due on the four credit card accounts

9 David’s secondary argument under this assignment of error, suggesting that Jennifer somehow received “double credit” for the payments in dispute (see Brief of Appellant, p. 24), apparently is based on evidence that either is missing from the record or to which David has not directed us. In either event, we decline to address that argument. See White v. White, 2d Dist. Clark No. 2013-CA-86, 2014-Ohio-1288, ¶ 8 (“We are not required to comb through the record on appeal to find the parts of the record that bear upon an assignment of error when the party assigning the error has failed to direct our attention to the place in the record demonstrating the error.”) and State v. Ishmail, 54 Ohio St.2d 402, 377 N.E. 500 (1978), paragraph one of the syllabus (“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.”). -28-

as of June 28, 2016 was $34,732. (Brief of Appellant, p. 25).

{¶ 47} Nothing in the record establishes that the trial court erred as David

suggests. Jennifer presented into evidence for each of the four credit cards in dispute the

account statement closest in time to the parties’ separation date of June 28, 2016. She

testified that on July 6, 2016, the balance on the Discover account was $7,005.26 (6/27/27

Hearing Tr., pp. 208-209); on July 4, 2016, the balance on the Bank of America account

was $7,217.00 (id., pp. 217-218); on July 6, 2016, the balance on the Upromise account

was $11,358.95 (id., p. 221); and on June 21, 2016, the balance on the Chase Slate

account was $10,923.00 (Id., pp. 223-224). Those figures total $36,504.20, a number

marginally lower than the $38,204.72 reflected in the final judgment (see 8/2/18 Final

Judgment and Decree of Divorce, p. 14) and marginally higher than the $34,732 David

advances. (Brief of Appellant, p. 25).

{¶ 48} Irrespective of those differences, however, we concluded above that the

trial court acted within the scope of its discretion in “hold[ing] David responsible for 100%

of the credit card debt.” (See 8/2/18 Final Judgment and Decree of Divorce, p. 15).

Significantly, the trial court’s actual judgment did not order David to pay a specific amount

of credit card debt; rather, it generically “ORDERED [David] to pay the entire balance of

the marital credit card debt.” (Id.). Accordingly, irrespective of the exact amount of that

remaining debt, David is responsible for paying all of it. He has directed us to nothing to

suggest that any discrepancy among the foregoing amounts is attributable to spending

by Jennifer after the separation date that should not be regarded as marital debt. Absent

such evidence, the trial court did not err by ordering him to pay the entirety of the parties’

remaining credit card debt, whatever that amount may be. His thirteenth assignment of -29-

error is overruled.

Assignments of Error #7, 8 – Calculation of David’s Income

{¶ 49} David’s seventh and eighth assignments of error contend that the trial court

erred in calculating David’s past income and projected future income. As to his future

earning potential, David asserts that the trial court “made a mathematical error” in

imputing to David an annual income of $24,000. (Assignment of Error #8). As to his past

earnings, David urges that the trial court incorrectly considered David’s “gross self income

profit” instead of his “net self employment income.” (Assignment of Error #7).

{¶ 50} A trial court “enjoys broad discretion” with regard to awards of both spousal

support and child support. Blevins v. Blevins, 2d Dist. Greene No. 20018-CA-23, 2019-

Ohio-297, ¶ 8, 47. An abuse of discretion occurs when the trial court’s decision regarding

support is “unreasonable, arbitrary or unconscionable.” Hagar v. Sabry, 2d Dist.

Montgomery No. 27967, 2018-Ohio-4230, ¶ 10, quoting Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140.

{¶ 51} In determining whether spousal support is appropriate and reasonable, as

well as its amount, nature, and duration, a trial court must consider a variety of factors.

Baskin v. Baskin, 2d Dist. Montgomery No. 27373, 2017-Ohio-7632, ¶ 10. These factors

include: 1) the parties’ income from all sources; 2) their relative earning abilities; 3) their

ages and physical, mental, and emotional conditions; 4) the retirement benefits of the

parties; 5) the duration of the marriage; 6) the extent to which it would be inappropriate

for a party to seek employment outside the home (particularly if a custodian of a minor

child of the marriage); 7) the parties’ standard of living during the marriage; 8) their relative -30-

educations; 9) the parties’ relative assets and liabilities; 10) 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; 11)

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; 12) the tax consequences, for each party, of an award of

spousal support; and 13) the lost income production capacity of either party that resulted

from that party's marital responsibilities. R.C. 3105.18(C)(1). The court also may consider

any other factor that it expressly finds to be relevant and equitable. R.C. 3105.18(C)(1)(n).

{¶ 52} “When considering the relative earning abilities of the parties in connection

with an award of spousal support, Ohio courts do not restrict their inquiry to the amount

of money actually earned, but may also hold a person accountable for the amount of

money [that] a ‘person could have earned if he made the effort.’ ” Kraft v. Kraft, 2d Dist.

Montgomery No. 25982, 2014-Ohio-4852, ¶ 21, quoting Miller v. Miller, 2d Dist.

Montgomery No. 14540, 1994 WL 730560, *4 (Dec. 28, 1994). “Because R.C. 3105.18(C)

permits inquiry into a party’s earning potential, Ohio courts often impute income to parties

who are voluntarily underemployed or otherwise not working up to their full earning

potential.” Miller at *4, citing, inter alia, Frost v. Frost, 84 Ohio App.3d 699, 618 N.E.2d

198 (10th Dist.1992).

{¶ 53} As to child support, “[t]he Ohio Revised Code provides a basic child support

schedule and a child support computation worksheet to be used when calculating the

amount of child support to be paid pursuant to a child support order.” Blevins, 2d Dist.

Greene No. 20018-CA-23, 2019-Ohio-297, at ¶ 17, citing R.C. 3119.021 and R.C. -31-

3119.022. The basic child support schedule and computation worksheet apply when the

parents’ combined gross income is between $6,600 and $150,000 per year.

{¶ 54} As to both spousal support and child support calculations, then, a parent’s

annual income is a critical starting point.

b. Assignment of Error #8 – Alleged Mathematical Error

{¶ 55} In projecting David’s annual income for purposes of calculating any support

obligations to be imposed, the trial court found “that using an annual income of $24,000

for [David] * * * ($1,200 per month x 12 months) is reasonable under [David’s] current

circumstances.” (Emphasis added.) (8/2/18 Final Judgment and Decree of Divorce, p. 4).

The record demonstrates that the trial court used the $24,000 figure as David’s income

for purposes of calculating the parties’ child support obligations. (See id., attached Child

Support Computation Worksheet, p. 1, line 1a and p. 2, line 7a).

{¶ 56} On appeal, David does not oppose the trial court’s imputing to him a $1,200

monthly income as “a realist[ic] goal,” but he points out that the trial court miscalculated

the annual income that would result from monthly earnings in that amount – i.e., “$1,200

a month for 12 month[s] is $14,400 in annual income,” not $24,000.

{¶ 57} Given that David’s observation is correct,10 we determine that this matter

should be remanded to the trial court to correct that computation error, and to further

10 We do not find persuasive Jennifer’s suggestion that the trial court intended to impute to David an annual income of $24,000, with the numbers inside the parentheses being simply “a clerical error” that does not merit reversal. (See Brief of Appellee, p. 17). Elsewhere in the final judgment, the trial court proposed the same $1,200 monthly income figure for David. (See 8/2/18 Final Judgment and Decree of Divorce, p. 4) (although David “testified that he could earn $1,500 to $2,000 per month” under certain circumstances, “[u]pon questioning by the Court, [David] admitted that $1,200 per month is a more realistic income projection”). -32-

determine what revisions, if any, may be warranted in the parties’ respective spousal and

child support obligations, as well as any other obligations, as a result of David’s corrected

income figure. David’s eighth assignment of error is sustained.

c. Assignment of Error #7 –Income Figure Used to Calculate Child Support

{¶ 58} David contends that the trial court also erred by calculating David’s past

income for purposes of child support obligations “using his gross self-employment profit

instead of his net self-employment income.” According to David, because “gross profits

do not include operating expenses,” the trial court’s approach led to a “large disparity”

between David’s actual net income for 2011-2014 and the figures used by the trial court

to represent David’s earnings for those years.

{¶ 59} On that topic, the final judgment entry states as follows:

The evidence indicates that [David]’s gross profits [from his computer

business] totaled $45,959 in 2011 (Plaintiff’s Exhibit 18), $28,164 in 2012

(Plaintiff’s Exhibit 19), $22,925 in 2013 (Plaintiff’s Exhibit 20), and $16,030

in 2014 (Plaintiff’s Exhibit 21). [David]’s income has continued to decline

each year since 2011, for which the parties offered differing explanations.

{¶ 60} Despite reciting the above numbers as representing David’s past earnings,

however, the trial court did not rely on those figures in calculating David’s support

obligations in this case. Instead, as we noted with respect to David’s eighth assignment

of error, above, the trial court used a projected annual income of $24,000 for David to

compute the parties’ respective child support obligations. (See 8/2/18 Final Judgment and

Decree of Divorce, attached Child Support Computation Worksheet, p. 1, line 1a and p.

2, line 7a). -33-

{¶ 61} Pursuant to R.C. 3119.02:

In any action in which a court child support order is issued * * *, the court

* * * shall calculate the amount of the obligor’s child support obligation in

accordance with the basic child support schedule, the applicable worksheet,

and the other provisions of sections 3119.02 to 3119.24 of the Revised

Code. The court * * * shall specify the support obligation as a monthly

amount due and shall order the support obligation to be paid in periodic

increments as it determines to be in the best interest of the children. In

performing its duties under this section, the court or agency is not required

to accept any calculations in a worksheet prepared by any party to the

action or proceeding.

{¶ 62} Unless the parents’ “combined gross income” is less than $6,600 or more

than $150,000,11 child support is to be paid in accordance with the schedule codified at

R.C. 3119.021, based on calculations made in accordance with the worksheet found at

R.C. 3119.022. The applicable child support computation worksheet includes lines

designated specifically for calculating “self-employment income” by deducting “[o]rdinary

and necessary business expenses” and other costs from the “[g]ross receipts from

business.” Id.

{¶ 63} Here, however, the trial court did not use the numbers it recited as

representing David’s past income as the basis for calculating his future support

obligations. Indeed, the trial court left blank the worksheet section used to compute “self-

11 It is undisputed that the combined gross income of these parties falls within the specified range. -34-

employment income” (see 8/2/18 Final Judgment and Decree of Divorce, attached Child

Support Computation Worksheet, p. 1, line 2), instead inserting the $24,000 figure as

representing David’s projected future annual income. (See id., p. 1, line 1a and p. 1, line

7a). Given that any error in the trial court’s statements about David’s past income12 had

no bearing on its calculations of the parties’ future support obligations, any such error was

harmless. See Hoch v. Carr, 9th Dist. Summit No. 26097, 2012-Ohio-1445, ¶ 7 (trial

court’s reference to facts not actually used to calculate support obligation was harmless

error); Carpenter v. Carpenter, 7th Dist. Noble Nos. 11 NO 387, 11 NO 388, 2012-Ohio-

4567, ¶ 23 (trial court’s error as to income figure used to compute child support is

harmless where party suffered no prejudice). See also Avery v. Avery, 2d Dist. Greene

Nos. 2002 CA 121, 2003 CA 1, 2002 CA 105, 2003-Ohio-4975 (in case for modification

of spousal and child support, erroneous admission of evidence was harmless where no

reason to believe it “in any way affected the trial court’s judgment”).

{¶ 64} David’s seventh assignment of error is overruled.

Assignments of Error #1, #2, #3 – Attorney’s Fees

{¶ 65} David contends that the trial court erred and/or abused its discretion in three

respects as to its award of attorney’s fees: 1) by awarding Jennifer fees even though she

did not request such fees at the final hearing (Assignment of Error #1); 2) by providing an

inequitable award of attorney’s fees (Assignment of Error #2); and 3) by failing to credit

David for $750 that he already had paid Jennifer for attorney’s fees. (Assignment of Error

#3).

12 We have not concluded whether the trial court’s past-earnings findings were erroneous, as we need not resolve that question in order to rule on this assignment of error. -35-

{¶ 66} In awarding attorney’s fees to Jennifer, the trial court stated as follows:

[Jennifer] requests that she be awarded attorney fees totaling

$23,825.00. [She] presented an expert witness, [an experienced Dayton-

area attorney], who testified that the hourly rate and work performed by

[Jennifer]’s attorney were reasonable and consistent with local practice.

The Court finds * * * [David]’s attitude and behavior throughout the

proceedings to be the main cause for the prolonged litigation of this case. It

is apparent to the Court that [David] has been more interested in acting

defiantly and with hostility, which eventually culminated in three days of trial.

The Court notes that [David] rarely followed through on his assertions that

he would provide evidence to support his position on various issues,

specifically when it came to lost wages due to lack of transportation and

case law supporting his date of separation. Therefore, the Court finds it

reasonable to award Plaintiff $23,825.00 in attorney fees. * * *

(8/2/18 Final Judgment and Decree of Divorce, p. 18).

{¶ 67} A divorce 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 of fees is equitable, “the court may consider the parties’

marital assets and income, any award of temporary spousal support, the conduct of the

parties, and any other relevant factors the court deems appropriate.” Id. The decision

whether to award attorney fees is within the trial court’s sound discretion and will not be

reversed absent an abuse of that discretion. Williams, 2018-Ohio-611, 106 N.E.3d 317, -36-

at ¶ 24, citing Janis, 2d Dist. Montgomery No. 23898, 2011-Ohio-3731, at ¶ 78, citing

Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 94456, 2011-Ohio-2255, ¶ 93.

b. Assignment of Error #1 – Failure to Request Fees

{¶ 68} David maintains that the trial court should not have awarded attorney’s fees

to Jennifer because she “did not seek attorney’s fees at the final hearing.” Furthermore,

he suggests that during the hearing on June 27, 2017, the parties “agreed in open court

to pay their own attorney fees for the divorce,” so that the trial court abused its discretion

by awarding fees despite that agreement.

{¶ 69} Notably, David cites no legal authority for the premise that a trial court may

not award attorney’s fees in a divorce action unless the receiving party made an explicit

request for such fees in his or her final hearing before the court. Neither does he cite

authority for the notion that a party who indicated an initial willingness to pay his or own

fees thereby waives the right to later seek reimbursement of fees if the matter becomes

unexpectedly protracted.

{¶ 70} Aside from those omissions as to the applicable law, we also do not accept

David’s characterization of the facts in the record. The transcript from the original hearing

date, to which David refers, does record a discussion with the trial court during which the

parties’ counsel indicated that attorney’s fees were not “in dispute” at that time, with each

party intending to pay his or her own fees. (6/27/17 Hearing Tr., p. 35). By the third hearing

date nearly four months later, however, without objection from David, Jennifer presented

as an expert witness an attorney who testified to the reasonableness of the hourly rate

charged by Jennifer’s counsel and the number of hours expended on what the expert

termed “a very long divorce case” with “a lot of motions” and hearings, including multiple -37-

motions to show cause filed on Jennifer’s behalf. (10/24/17 Hearing Tr., pp. 49-67). The

record belies David’s suggestion that the expert’s testimony was limited to the

reasonableness of the fees charged relative to those show cause motions. Rather, the

expert testified about the entirety of the billing records of Jennifer’s counsel related to this

case.

{¶ 71} The presentation of that testimony during the final hearing conveyed

Jennifer’s desire to recover attorney’s fees, and thus also controverts David’s statement

that Jennifer “did not seek attorney’s fees at the final hearing.” Moreover, the trial court at

that time communicated its intent to consider awarding fees to Jennifer. Responding to

an objection from David’s counsel to the relevance and accuracy of the attorney’s fees

exhibit proffered by Jennifer, the court stated:

Relevance is certainly not a reason to object. I mean, I’ve got a

request for attorney fees in the original complaint for divorce, I believe.

The statute provides that I can award attorney fees at any point in

the proceedings * * *

[As to accuracy], I’m satisfied with the witness’s testimony, and I did

the math myself as far as what the hourly rates are based upon the charge

and the time involved.

So I’m satisfied * * *, so I’ll overrule that objection. It will be admitted,

and I will take into account all the relevant issues when awarding attorney

fees and make a decision on that one. -38-

(Emphasis added.) (Id., pp. 109-111).

{¶ 72} As David’s first assignment is supported by neither the facts nor the

applicable law, it is overruled.

c. Assignment of Error #2 – Equitableness of Fee Award

{¶ 73} David next contends that the fee award to Jennifer was not “equitable” in

light of the parties’ significant income discrepancy. While Jennifer’s higher earnings are

one factor that the trial court was to consider in making a fee award under R.C.

3105.73(A), “the conduct of the parties” is an equally important consideration under that

statute. Here, the trial court unequivocally expressed its view that David’s “attitude and

behavior throughout the proceedings” was the primary reason that the expense of the

parties’ attorneys became so high. (8/2/18 Final Judgment and Decree of Divorce, p. 18).

Because the record supports the trial court’s conclusion that David engaged in blatantly

obstructive behavior, we defer to the trial court’s assessment of David’s “defian[ce]” and

“hostility” as warranting a fee award to Jennifer. See Williams, 2018-Ohio-611, 106

N.E.3d 317, at ¶ 29 (affirming fee award as “supported by the trial court’s finding that [one

former spouse] caused [the other former spouse] to incur unnecessary attorney fees”).

{¶ 74} In light of the trial court’s findings, we cannot say that the trial court abused

its discretion in ordering David to pay Jennifer’s fees in the amount of $23,825.00, and

David’s second assignment of error is overruled.

d. Assignment of Error #3 – Failure to Credit Prior Fee Payment

{¶ 75} Finally, David argues that the trial court erred by failing to credit him for $750

that he previously paid to Jennifer toward her attorney’s fees. The record does contain a

document in which David professes to have paid Jennifer that amount by check (from -39-

David’s father) dated May 25, 2017, “as reimbursement of [Jennifer’s] legal fees for the

contempt filing.” (Trial Court Docket #77). He argues that no credit for that payment

appeared on the attorney’s fees exhibit admitted into evidence since the payment was

made to Jennifer directly rather than to her attorney.

{¶ 76} It appears that the trial court may not have taken that alleged payment into

consideration in making its award of attorney’s fees. Accordingly, David’s third

assignment of error is sustained, and the matter will be remanded in order for the trial

court to consider whether David is due a credit in the amount of $750 toward the total

attorney fee award.

Conclusion

{¶ 77} The trial court’s judgment will be reversed: 1) as to the order for distribution

of property, for failing to articulate, consistent with R.C. 3015.171, why David’s claimed

inheritance was regarded as marital property and not as David’s separate property; 2) as

to the order regarding tax refunds/liabilities, for failing to order Jennifer to pay David both

one-half of that portion of Jennifer’s federal income tax refund for 2016 attributable to the

months before the parties separated and one-half of that portion of David’s $346 federal

income tax liability for 2016 attributable to the months before the parties separated; 3) as

to the orders for spousal support and child support, to accurately reflect the amount of

David’s imputed annual income, and to make any corresponding changes warranted in

the amount of spousal support and/or child support to be paid; and 4) as to the award of

attorney’s fees, for failing to address whether David should have been credited for a $750

payment previously made to Jennifer.

{¶ 78} This matter will be remanded for the limited purpose of addressing the -40-

foregoing four issues. The judgment will be affirmed in all other respects.

.............

DONOVAN, J. and HALL, J., concur.

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Jay A. Adams David L. Johnson Hon. Steven L. Hurley