K.L.B. v. M.T.B.

2025 Ohio 2445

• Court: Ohio Court of Appeals
• Decided: July 10, 2025
• Docket: 114029
• Status: Published

Opinion

[Cite as K.L.B. v. M.T.B., 2025-Ohio-2445.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

K.L.B., :

Plaintiff-Appellee/ : Cross-Appellant, No. 114029 : v. : M.T.B., : Defendant-Appellant/ Cross-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: July 10, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-19-377095

Appearances:

Rosenthal | Lane, L.L.C., Scott S. Rosenthal, and Alarra S. Jordan, for appellee/cross-appellant.

Bartos & Company, LPA, and Timothy G. Spackman, for appellant/cross-appellee. SEAN C. GALLAGHER, J.:

M.T.B. (“Michael”) appeals the final judgment entry of divorce,

which in pertinent part divided his and K.L.B.’s (“Kristy”) assets in a roughly even

distribution. In a cross-appeal, Kristy challenges the amount and duration of the

spousal-support award, the lack of a life-insurance security on the division of

property award, and the denial of her request for attorney fees. For the following

reasons, we affirm in part, reverse in part, and remand for further proceedings.

The parties were married in 2005 and have two teenage children.

This was Michael’s third marriage. They separated in 2019, and Kristy initiated

divorce proceedings. Michael is in his 70s and has some health problems. He is a

medical doctor specializing in urology and had ownership interests in several

medical businesses at the time of trial. Kristy is in her late 40s. Kristy raised their

children and generally supported the family in a non-earning capacity.

At trial, before the domestic relations court’s magistrate, both parties

presented evidence of the value of the marital assets. The specifics of the valuations

will be discussed later, where relevant to this appeal. The court, over objections,

adopted the magistrate decision disposing of all issues and entered the final

judgment entry of divorce. In that entry, as is relevant to this appeal, the court

declined to award Kristy her attorney fees, awarded her $4,000 a month for spousal

support for one year, and allocated each party their respective life insurance policy.

This timely appeal and cross-appeal followed. In Michael’s appeal, he advances three assignments of error claiming

(1) that the domestic relations court erred in determining the market values of his

interests in several businesses; (2) that the division of property was not equitably

achieved; and (3) that the court abused its discretion in refusing to “reopen” trial for

the purposes of considering additional testimony and evidence after objections to

the magistrate decision were filed. In Kristy’s cross-appeal, she claims the court

erred (1) in determining the amount and duration of spousal support; (2) by not

requiring Michael to secure his support and property division with a life insurance

policy or accruing interest; and (3) by failing to award her attorney fees. Each

argument will be addressed in the order presented but combined where appropriate.

Generally, “[w]hen reviewing the propriety of a trial court’s

determination in a domestic relations case, an abuse of discretion standard is

used.” Taylor v. Taylor, 2018-Ohio-2530, ¶ 5 (10th Dist.), citing Booth v. Booth, 44

Ohio St.3d 142, 144 (1989). This standard applies to issues such as “orders relating

to alimony; the division of marital property; child custody; and child support.”

(Citations omitted.) Id. “A trial court abuses its discretion when it exercises its

judgment in an unwarranted way regarding a matter over which it has

discretionary authority.” Palmieri v. Palmieri, 2024-Ohio-2720, ¶ 13 (10th Dist.),

citing Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35.

There is a notable exception to the abuse-of-discretion standard in

this context. “The trial court’s valuation of an asset in a divorce case is a question

of fact reviewed under a manifest weight of the evidence standard.” Rossi v. Rossi, 2014-Ohio-1832, ¶ 17 (8th Dist.), citing Kapadia v. Kapadia, 2011-Ohio-2255, ¶ 24

(8th Dist.); see also Granada v. Rojas, 2024-Ohio-1272, ¶ 8 (8th Dist.). At one

time, it was declared that “[a]n appellate court will not reverse a trial court’s

valuation if it is supported by some competent, credible evidence.” Rojas at ¶ 8,

citing Haynes v. Haynes, 2009-Ohio-5360, ¶ 14 (8th Dist.). That competent-

credible-evidence standard, however, is a reference to the now-defunct civil

manifest-weight-of-the-evidence standard derived from Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80 (1984).1 Eastley v. Volkman, 2012-Ohio-2179,

¶ 17, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the

syllabus.

Thus, under the modern understanding of the manifest-weight

standard, appellate courts review a domestic relations court’s valuation of a marital

assets under the manifest-weight standard as articulated in Thompkins: in

reviewing the entire record, the appellate court must weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered. Id. at 387.

1 We are aware that some districts have included the valuation of a marital asset

under the umbrella of the abuse-of-discretion standard of review. See, e.g., Hosang v. Hosang, 2019-Ohio-54, ¶ 14 (6th Dist.). Although citing abuse of discretion as the standard of review, those panels still reviewed the weight of the evidence presented in favor of the valuation. Id. In his first assignment of error, Michael advances several claims

with respect to the domestic relations court’s valuation of his business assets that

were considered marital property. In reviewing the trial evidence, the court found

that Michael had six business interests valued at $1,448,850: Southwest Urology

LLC ($75,000), 6900 Surgery Center LLC ($370,000), Pearl Road Surgery Center

LLC ($405,000), Emerald Necklace Urology Group LLC ($270,000), “If

Defendant is a ‘Designated Physician’” ($38,850),2 and the Smith Road Properties

sale proceeds ($290,000). Kristy was awarded a lump sum of $724,425, to be paid

in monthly installments of $3,000 while the spousal-support award is active, rising

to $7,000 a month thereafter.

Michael first claims that a double counting occurred when the

proceeds from the sale of the Smith Road Properties, totaling $290,000, were

divided equally as part of the marital assets even though that money had already

been deposited into a retirement account, which was also divided equally between

the parties. Kristy agrees with Michael, in that he is correct “in asserting that the

funds from the sale went directly into the Keystone Financial retirement account

which was later distributed equally to the parties.” Appellee/Cross-Appellant’s

Brief, p. 7. Confusingly, Kristy argues that “after the division, [Michael] later

argued that he returned those funds to his Keystone account but never presented

2 Neither party explained the meaning of this line item in their respective appellate

briefing. any evidence of the same at trial.” Id. It is unclear what funds she is claiming were

returned or how that impacts her concession.

Kristy nonetheless claims that Michael waived that argument

because he did not advise the court of the issue until objecting to the proposed

judgment entry of divorce. Regardless of the timing of the objection, she agrees

the double counting occurred and has cited no authority in support of the waiver

argument in the context of equitably dividing the couple’s assets. See

App.R. 16(A)(7). Because the proceeds from the sale of the property liquidated

Michael’s interest in that property and those funds were deposited into the

retirement account separately divided, it would be inequitable to divide the same

money twice as a separate category of marital assets — in effect awarding one party

the entire value of the asset when the intent was to equitably divide the assets in

an even manner. The proceeds from the sale of the asset should only be counted

in one category of assets, a business asset or as part of the retirement account.

Michael also claims that he has no ownership interest in Southwest

Urology, contrary to the court’s conclusion. His supposed interest was valued at

$75,000 in the final judgment of divorce. At trial, Dr. Michael Barkoukis testified

that he was the sole owner of that company, which was a shell corporation set up

to manage Emerald Necklace Urology. Michael does have a one-sixth interest in

Emerald Necklace Urology, but that interest was separately assessed and that value

equally divided. There is undisputed evidence that Dr. Barkoukis is the sole owner of Southwest Urology, which necessarily means Michael has no monetary interest

in that entity.

In response, Kristy claims that her financial expert, Edward

Blaugrund, established the $75,000 valuation at trial. No citation to the specific

portion of his testimony was provided. Upon review of his trial testimony,

however, it is apparent that Blaugrund was unable to qualify Michael’s share of

ownership interest in Southwest Urology. Tr. 27:3-14 (Apr. 27, 2023). Blaugrund

provided testimony establishing the overall value of Southwest Urology and

speculated that if Michael owned a one-percent interest in Southwest Urology, that

would be worth $38,850. Tr. 23:19-23. Nothing within Blaugrund’s testimony

established that Michael held an interest in Southwest Urology. Without more, we

are constrained to agree with Michael that the $75,000 valuation of his alleged

interest Southwest Urology is unsupported by the record.

Because the parties seemingly agree that the $290,000 representing

the proceeds of the Smith Road Properties sale were deposited into the retirement

account that was separately divided between the parties and because there is no

evidence supporting the $75,000 valuation of Southwest Urology, those assets

should not have been included in the aggregate value of all business assets

considered marital property.

There is, however, no merit to Michael’s remaining claims regarding

his investment in 6900 Surgery Center or a single investment in his retirement

account. Michael challenges the inclusion of his interest in 6900 Surgery Center, valued at $370,000 in the final divorce decree. In this appeal, he claims his interest

in that corporation is not marital property because the “sum of $370,000 . . . was

invested in his practice/business” and he was “clearly” awarded that money in a

previous divorce. He also claims a $138,613 investment in his retirement account,

which grew approximately tenfold over the years, should be deemed separate

property because the investment predated the marriage. Michael provided no

account statements to demonstrate the rate of return.

In a divorce proceeding, “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” is presumed to be marital property. R.C.

3105.171(A)(3)(a)(iii). A party who claims an acquired-before-marriage asset is

separate property has the burden of proving that claim. Rossi, 2014-Ohio-1832, at

¶ 43 (8th Dist.). It is not enough to demonstrate that the property was obtained

before the marriage. In order to demonstrate that separate property retains its

identity as separate property, it must be traced. Id. Part of that tracing includes

identifying the value of the asset at the time of marriage and demonstrating passive

appreciation. Kellam v. Bakewell, 2014-Ohio-4635, ¶ 28 (6th Dist.), quoting Bizjak

v. Bizjak, 2005-Ohio-7047, ¶ 12 (11th Dist.).

We cannot conclude that the court erred by including the value of

Michael’s interest in 6900 Surgery Center and the $138,613 investment in the

retirement account as marital property. As the magistrate noted, Michael’s financial

advisor testified as to the value of the account and Michael’s interest in the surgery center, but he did so based on his assessment of the standard of review for a trial,

whether there was a preponderance of evidence demonstrating the separateness of

the property. In other words, his testimony was limited to impermissibly offering a

bare conclusion. See Moore v. ThorWorks Industries, 2024-Ohio-1617, ¶ 53 (6th

Dist.), quoting Gannett v. Booher, 12 Ohio App.3d 49, 52 (6th Dist. 1983). No

supporting documents were provided for consideration by the trier of fact. The first

assignment of error is overruled in part and sustained in part.

Michael’s second and third assignments of error are related. He

claims that the court committed prejudicial error in its division of property because

it failed to consider the fair market value of his interest in Emerald Necklace

Urology in his sale of it to Integrated Oncology Network (“ION”), a separate entity

buying out Michael’s interest in Emerald Necklace Urology. The sale occurred

between the trial testimony of Kristy’s expert and the final judgment.

Michael attached a document titled “Severance and Release of Claims

Agreement,” entered between him and ION detailing the terms of his separation

with ION and Southwest Urology, to his motion to “reopen evidence” and

supplemental objections filed while the court was considering the objections to the

magistrate’s decision. In that agreement, dated January 26, 2024, ION agreed to

pay Michael $205,000 for his stake in Emerald Necklace Urology — evidence of the

fair market value of his ownership interest in that business entity. At trial, which

occurred months earlier, his ownership interest in Emerald Necklace Urology was

valued at $270,000 based on the evidence available at the time. The trial court, at the behest of Kristy, treated Michael’s request to

consider the new evidence as one for a new trial under Civ.R. 59. In denying

Michael’s motion, the court cited Schwenk v. Schwenk, 2 Ohio App.3d 250 (8th

Dist.1982), and concluded the evidence was not discoverable before or during trial,

and therefore, it could no longer be considered. Schwenk does not stand for such a

proposition. The panel there concluded that “[a] trial court does not abuse its

discretion in overruling a motion for a new trial based upon newly discovered

evidence where the events constituting the newly discovered evidence occurred after

trial and subsequent to the court’s announcement of decision but prior to entry of

judgment.” (Emphasis added.) Id. at syllabus. Schwenk involved a case in which

the final judgment was issued, and less than three weeks later one of the parties

moved for a new trial under Civ.R. 59. Id. at 251. That decision is not applicable to

the procedural posture of the underlying case.

In this case, Michael’s request to “reopen evidence” occurred before

the final judgment was rendered but during the time in which the court was

considering the pending objections to the magistrate’s decision. As a result, Civ.R.

53(D)(4)(d) applies, not Civ.R. 59. That rule provides that before conducting an

independent review of the objected-to matters, “the court may hear additional

evidence but may refuse to do so unless the objecting party demonstrates that the

party could not, with reasonable diligence, have produced that evidence for

consideration by the magistrate.” See Hall v. Zimmerman, 2021-Ohio-270, ¶ 9 (9th

Dist.). “Courts have interpreted Civ.R. 53(D)(4)(d) . . . to permit trial courts to consider ‘additional evidence’ in the form of facts that were not in existence when a

case was heard by the magistrate.” (Emphasis added.) In re B.W., 2025-Ohio-1148,

¶ 32 (10th Dist.), quoting Morrison v. Morrison, 2014-Ohio-2254, ¶ 26 (9th Dist.).

The fair-market purchase value of Michael’s interest in Emerald

Necklace Urology, as demonstrated through ION’s purchase agreement, was not

known at the time of trial, but nonetheless presents new evidence as to the value of

his interest in that entity. That evidence was not available until January 2024, well

after trial had concluded but before the court acted on the filed objections.

Accordingly, Michael was permitted to invoke Civ.R. 53(D)(4)(d) in presenting the

evidence to the trial court while the objections to the magistrate decision were

pending. Because the domestic relations court applied the incorrect standard, it

must be concluded that the court abused its discretion in overruling the motion to

consider additional evidence. Johnson, 2021-Ohio-3304, at ¶ 39.

The second and third assignments of error are sustained in part.

With respect to Michael’s appeal, the matter is remanded for the trial court to

consider the new evidence demonstrating the fair market value of Michael’s interest

in Emerald Necklace Urology and to remove the valuations for the Smith Road

Properties and Southwest Urology from the aggregate value of the business assets.

All other arguments are overruled if not specifically addressed.

Kristy’s three cross-assignments of error challenge the domestic

relations court’s award and imposed duration of spousal support, the failure to

require Michael to secure his support and property division obligations with a life insurance policy and accruing interest, and the denial of her request for reasonable

attorney fees. Those three arguments all suffer from the same defect — the

arguments presented rely on the incorrect standard of review.

Awarding spousal support, including determining the duration of

that award, determining whether a property division obligation must be secured

with a life insurance policy and accruing interest, and awarding of reasonable

attorney fees are questions reviewed under the abuse-of-discretion standard.3

Williams v. Williams, 2016-Ohio-7487, ¶ 9 (8th Dist.), citing Gordon v. Gordon,

2006-Ohio-51, ¶ 13 (11th Dist.) (Although the domestic relations court determines

whether to grant spousal support after considering the factors listed in R.C. 3105.18,

the standard of appellate review is abuse of discretion.); Chattree v. Chattree, 2014-

Ohio-489, ¶ 71 (8th Dist.), citing Daniels v. Daniels, 2008 Ohio App. LEXIS 772, *9

(10th Dist. Mar. 4, 2008), and Schoren v. Schoren, 2005-Ohio-2102, ¶ 11 (6th Dist.)

(“If the record reflects that the trial court considered the statutory factors, and if the

judgment contains details sufficient for a reviewing court to determine that the

support award is fair, equitable, and in accordance with the law, the reviewing court

3 Kristy included the spousal-support award in her discussion of the life-insurance

issue, but under black-letter Ohio law, “A trial court may not secure a spousal-support order with life insurance, unless the order specifically states that the spousal support continues after the death of the obligor.” Janosek v. Janosek, 2007-Ohio-68, ¶ 10 (8th Dist.), citing Waller v. Waller, 2005-Ohio-4891 (7th Dist.), R.C. 3105.18(B) (“Any award of spousal support made under this section shall terminate upon the death of either party, unless the order containing the award expressly provides otherwise.”). In this case, the spousal-support award expressly terminates upon the death of either party. We need not elaborate on that point further. will uphold the award.”); McCoy v. McCoy, 91 Ohio App.3d 570, 582-583 (8th Dist.

1993), citing Nori v. Nori, 58 Ohio App.3d 69 (12th Dist. 1989), and Gore v. Gore,

27 Ohio App.3d 141 (9th Dist. 1985) (A domestic relations court has discretion to

include a requirement of obtaining a life insurance policy as security for the division

of property settlement award.); Watson v. Watson, 2023-Ohio-3719, ¶ 43 (10th

Dist.), citing Roush v. Roush, 2019-Ohio-4777, ¶ 15 (10th Dist.), and Roubanes v.

Roubanes, 2014-Ohio-5163, ¶ 6 (10th Dist.) (“An award of attorney fees under R.C.

3105.73(B) lies within the sound discretion of the trial court.”).

Abuse of discretion generally applies in situations where the trial

“‘court is empowered to make a decision — of its choosing — that falls within a range

of permissible decisions.’” Miller v. Eldridge, 146 S.W.3d 909 (Ky. 2004), quoting

Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001). “When trial

courts are vested with discretion to render a decision, the court is not required to

make any ‘particular decision.’” Murfey v. Muth, 2025-Ohio-1184, ¶ 17 (8th Dist.),

citing Zervos at 169. Generally, a case involving a discretionary decision involves

the weighing of factors or circumstances based on some factual underpinning. “A

trial court abuses its discretion when it exercises its judgment in an unwarranted

way regarding a matter over which it has discretionary authority.” Palmieri v.

Palmieri, 2024-Ohio-2720, ¶ 13 (10th Dist.), citing Johnson, 2021-Ohio-3304 at

¶ 35. Notwithstanding, an appellate court’s disagreement with the domestic

relations court’s weighing of evidence or consideration of individual factors standing

alone does not rise to the level of error constituting an abuse of discretion. In this case, Kristy’s arguments in the three assignments of error in

the cross-appeal present the same arguments and consideration of the same factors

presented to the domestic relations court. In essence, she is asking this panel to

reach a different conclusion than the court below without regard to the trial court’s

rationale and conclusion. That form of review is best described as being de novo, a

standard not applicable to the arguments presented. “‘It is the duty of the appellant,

not [an appellate court], to demonstrate his assigned error through an argument

that is supported by citations to legal authority and facts in the record.’” Russo v.

Gissinger, 2023-Ohio-200, ¶ 28 (9th Dist.), quoting State v. Taylor, 1999 Ohio App.

LEXIS 397, *3 (9th Dist. Feb. 9, 1999); see also State v. Quarterman, 2014-Ohio-

4034, ¶ 19, citing State v. Bodyke, 2010-Ohio-2424, ¶ 78 (O’Donnell, J., concurring

in part and dissenting in part).

Even if this panel disagreed with the court’s resolution of the spousal-

support issue,4 the decision to not require insurance or accruing interest to secure

4 Notwithstanding, Kristy’s appellate arguments as to the spousal-support award

are inherently flawed. Kristy does not dispute the magistrate’s conclusion as to Michael’s projected income, amounting to nearly $300,000 a year. Instead, she claims that he ought to restart his consulting work that generated $46,000 a year in income in the past, and that the magistrate should impute the roughly $150,000 Michael received as distributions from his ownership of the medical businesses as future income. No spouse is required to work multiple jobs for the purposes of spousal support, and any distributions that Michael received from his ownership in the businesses would already be incorporated into the valuation of those assets as used for the purposes of dividing the marital property. And further, Kristy neglected to address the magistrate’s consideration of the fact that she received approximately $138,000 a year in spousal support for approximately four years during the divorce proceedings. the obligation on the division of property,5 or the denial of attorney fees, that mere

disagreement does not rise to the level constituting an abuse of discretion. In light

of the limitations with the arguments as presented, solely rehashing the same

arguments and considerations presented to the court below, we cannot find

reversible error.

Kristy’s assigned errors in the cross-appeal are overruled.

Michael’s assigned errors are sustained in part and overruled in part.

The matter is remanded for the trial court to consider the new evidence

demonstrating the fair market value of Michael’s interest in Emerald Necklace

Urology and to remove the valuations for the Smith Road Properties and Southwest

Urology from the aggregate value of the business assets. The remainder of his

arguments are overruled.

The final judgment of divorce is affirmed in part, reversed in part, and

remanded for further proceedings limited to resolving the above-identified issues.

It is ordered that appellant/cross-appellee recover from appellee/cross-

appellant costs herein taxed.

5 Kristy claims that the distributive “order without any security of life insurance or

interest amounts to an abuse of discretion.” According to her, Michael “may die before his spousal support and property division obligations are fulfilled, leaving [her] and the minor children in a financially difficult position.” As a result, she is essentially declaring that a life insurance policy and interest on the division of property award, which is paid in installments, is a mandatory obligation and the failure to impose will always be an abuse of discretion. In order to accept that argument, this panel would be creating a bright-line rule requiring the domestic relations court to award interest and secure the award with a life insurance policy in all cases. Under Ohio law, however, the court has discretion to impose those conditions. It is not mandated. We decline that invitation. The court finds there were reasonable grounds for this appeal.

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

common pleas court, domestic relations division, to carry this judgment into

execution. Case remanded to the trial court for further proceedings consistent with

this opinion.

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

27 of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, P.J., and ANITA LASTER MAYS, J., CONCUR